Ithier v. Cruz

• Decision Date: 19 September 2022
• Docket Number: CIVIL 19-2053 (JAG)
• Parties: RAFAEL ITHIER and EGC, CORP. A/K/A EL GRAN COMBO Plaintiffs/Counter Defendants v. CARLOS JUAN APONTE CRUZ A/K/A CHARLIE APONTE, et al. Defendants/Counter Plaintiffs
• Court: U.S. District Court — District of Puerto Rico

RAFAEL ITHIER and EGC, CORP. A/K/A EL GRAN COMBO Plaintiffs/Counter Defendants
v.
CARLOS JUAN APONTE CRUZ A/K/A CHARLIE APONTE, et al. Defendants/Counter Plaintiffs

CIVIL No. 19-2053 (JAG)

United States District Court, D. Puerto Rico

September 19, 2022

REPORT AND RECOMMENDATION

GISELLE LOPEZ-SOLER UNITED STATES MAGISTRATE JUDGE.

This is an action for declaratory judgment. Defendant Charlie Aponte (“Aponte”), the lead singer of over 200 songs recorded by El Gran Combo, requested the payment of digital performance royalties collected and distributed by an entity called SoundExchange, Inc. (“SoundExchange”) for the benefit of recording featured artists. Plaintiffs Rafael Ithier and EGC, Corp. a/k/a El Gran Combo (jointly, “Ithier”) seek a declaration from the Court that Ithier-as sole owner of El Gran Combo-has the exclusive right to collect digital performance royalties intended for recording featured artists. Docket No. 1. Aponte filed a counterclaim seeking a declaration that, as a performer in El Gran Combo sound recordings, he is entitled to participate in the digital performance royalties collected and distributed by SoundExchange for the benefit of recording featured artists. Docket No. 10. The parties agree that there are no material issues of fact preventing the entry of summary judgment. Both sides have moved for summary judgment at Docket Nos. 20 and 23. The Court referred the matter to the undersigned for a Report and Recommendation. Docket No. 36. After considering the parties' submissions and the applicable law, the undersigned recommends that the Court GRANT Ithier's motion for summary judgment at Docket No. 23 and DENY Aponte's motion for summary judgment at Docket No. 20.

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I. Standard of Review

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is warranted when the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is considered genuine if “a reasonable jury, drawing favorable inferences, could resolve it in favor of the nonmoving party.” Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 270 (1^st Cir. 2014)(citation omitted). A fact is “material” if it potentially affects the outcome of the suit. American Steel Erectors, Inc. v. Local Union No. 7, 536 F.3d 68, 75 (1^st Cir. 2008). However, “[c]onclusory allegations, improbable inferences, and unsupported speculation are insufficient to establish a genuine dispute of fact.” Velazquez-Perez, 753 F.3d at 270 (citations omitted). A party moving for summary judgment bears the burden of proving that there are no genuine issues of material fact and that judgment as a matter of law is warranted. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). The moving party “may affirmatively produce evidence that negates an essential element of the non-moving party's claim” or “point to evidentiary materials already on file [...] that demonstrate that the non-moving party will be unable to carry its burden of persuasion at trial.” Carmona v. Toledo, 215 F.3d 124, 132 (1^st Cir.2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317)).

II. Uncontested Facts

Having reviewed the submissions by both sides, the Court finds that the following material facts are not in dispute:

1. Rafael Ithier created the orchestra known as El Gran Combo. Defendants' Statement of Material Facts at Docket No. 20 (“DSMF”) at ¶ 1

2. As the owner of El Gran Combo, Rafael Ithier selects the singers and musicians who are members of the band. DSMF at ¶ 2

3. El Gran Combo is a band that typically has three singers two saxophone players, two trumpet players, a trombone player, a bass player, a pianist, a timbales player, a conga player, a bong player, and a director. DSMF at ¶ 3.

4. For a particular recording, Rafael Ithier might bring in backup singers or chorus that are not members of the band. DSMF at ¶ 4.

5. Charlie Aponte was a singer in El Gran Combo between 1973 and 2014. DSMF at ¶ 6; Docket No. 20-4 at ¶ 15.

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6. Charlie Aponte was the lead singer in about 200 songs for El Gran Combo. DSMF at ¶ 7; Docket No. 20-4 at ¶ 3.

7. Charlie Aponte has not been paid featured artist royalties by SoundExchange for El Gran Combo sound recordings in which he was lead singer or participant. DSMF at ¶ 8.

8. SoundExchange website provides that: “The term ‘featured artist' refers to the group or individual most prominently featured on a sound recording, track or album.”. Plaintiff's Statement of Uncontested Facts at Docket No. 24 (“PSUF”) at ¶ 8.

9. None of the albums released by El Gran Combo while Charlie Aponte was in the band identified any of its members by name in the cover. PSUF at ¶ 20; Docket No. 24-1 at ¶ 4; Docket No. 24-3 at ¶ 5; Docket No. 24-4 at ¶ 5; Docket No. 24-7 at p. 18 ¶¶ 7-17.

10. The front covers of the albums only identified El Gran Combo. Charlie Aponte's name never appeared written as a featured artist in any of El Gran Combo album covers. PSUF at ¶¶ 26-27, 50-51; Docket No. 20-4 at ¶ 9; Docket No. 24-1 at ¶ 4; Docket No. 24-3 at ¶ 5; Docket No. 24-4 at ¶ 5; Docket No. 24-7

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