Johnson v. Berry
| Decision Date | 22 October 2002 |
| Docket Number | No. 4:00CV1891-DJS.,4:00CV1891-DJS. |
| Citation | 228 F.Supp.2d 1071 |
| Parties | Johnnie JOHNSON, Plaintiff, v. Charles E. BERRY and Isalee Music Company, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Mitchell A. Margo, Curtis and Oetting, St. Louis, MO, Scott J. Orr, Orr Law Office, Sacramento, CA, for Plaintiff.
Martin M. Green, Joe D. Jacobson, Fernando Bermudez, Green and Schaaf, St. Louis, MO, Alvin A. Wolff, Jr., Brentwood, MO, for Defendants.
Plaintiff Johnnie Johnson, erstwhile pianist with defendant Chuck Berry's band, seeks relief on a number of legal theories based on his claim to be a co-creator of numerous songs allegedly written between 1955 and 1966 and copyrighted by Berry in his own name or that of his publishing company, defendant Isalee Music Company. The following are the songs at issue in this case, as identified in the first amended complaint and a subsequent amendment by interlineation:
"Roll Over Beethoven"
"Rock and Roll Music"
"Sweet Little Sixteen"
"Brown Eyed Handsome Man"
"Nadine"
"Thirty Days"
"You Can't Catch Me"1
"No Money Down"
"Downbound Train"
"Drifting Heart"
"Too much Monkey Business"
"Havana Moon"
"School Days"
"Rock and Roll Music"
"I've Changed"
"Reelin' and Rockin'"
"Around & Around"
"Carol"
"Jo Jo Gunne"
"Sweet Little Rock `N Roller'"
"Almost Grown"
"Back in the U.S.A."
"Too Pooped to Pop"
"Bye Bye Johnny"
"You Never Can Tell"
"Promised Land"
"No Particular Place to Go"
"Baby Doll"
"Blue on Blue"
"Deep Feeling"
"Rockin' at the Philharmonic"
"Surfin' U.S.A."
"Wee Wee Hours."
The first amended complaint refers to these 33 songs2 as the "Berry/Johnson Songs."
The first amended complaint contains five counts. Count I seeks a declaratory judgment against both defendants that plaintiff was a partner in the creation of, and is a co-owner of the copyrights to, the Berry/Johnson Songs. Count II seeks an accounting by both defendants of all profits from the Berry/Johnson Songs from 1955 to the present. Count III alleges that defendant Berry breached a fiduciary duty owed to plaintiff as his partner by obtaining copyrights on the Berry/Johnson Songs without Johnson, by depriving Johnson of profits, by misleading Johnson to believe he was not a co-owner of the copyright, and by taking advantage of Johnson's alcoholism and limited intellectual level. Count IV asserts a claim that Berry breached a fiduciary duty owed to Johnson under copyright law as a collaborator in the creation of the Berry/Johnson Songs. Count V alleges that Berry committed fraud on Johnson by repeatedly making material misrepresentations to lead Johnson to believe that he was not entitled to any compensation for the Berry/Johnson Songs beyond his fee as a studio musician.3 The matter is now before the Court on defendants' motion seeking summary judgment as to each count of the first amended complaint on statute of limitations and other grounds.
Defendants first argue that Counts I, II and IV are barred by the Copyright Act's three-year statute of limitations, codified at 17 U.S.C. § 507(b): "No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued." The parties' arguments on the statute of limitations question raise issues both of accrual and of equitable tolling.
As the Court indicated in its earlier ruling on the motion to dismiss:
In a copyright accrual context, the Second Circuit has held that "[a] cause of action accrues when a plaintiff knows or has reason to know of the injury upon which the claim is premised." Stone v. Williams, 970 F.2d 1043, 1048 (2nd Cir. 1992); Merchant v. Levy, 92 F.3d 51, 56 (2nd Cir.1996). "A cause of action accrues when a reasonably diligent plaintiff would have been put on inquiry as to the existence of a right." Netzer v. Continuity Graphic Associates, Inc., 963 F.Supp. 1308, 1315 (S.D.N.Y.1997). Adopting by analogy a principle from tenancy in common in real property, the Zuill [v. Shanahan, 80 F.3d 1366, 1370 (9th Cir.1996)] court noted that "[a]n express or implicit ouster of a cotenant by an unequivocal act of ownership starts the adverse possession statute of limitations running."
Johnson v. Berry, 171 F.Supp.2d 985, 989 (E.D.Mo.2001); Order of June 11, 2001 [Doc. # 31], pp. 6-7. Plaintiff argues that his "lack of legal mental competence" rendered him unable to comprehend his cause of action until unspecified occurrences "shortly before" this action was filed. Plaintiff therefore contends that legally his cause of action did not accrue, and the statute of limitations did not begin to run, until that unspecified but recent time. Pltf. Memo. in Opp. [Doc. # 62], p. 3.
For factual support for this argument, plaintiff relies principally upon the report of Claude S. Munday, Ph.D., a clinical psychologist who conducted a psychological/neuropsychological evaluation of Mr. Johnson. Dr. Munday's report expresses the following among his conclusions:
Thus, we have a gentleman of borderline defective intelligence overall, who has a distinct tendency to perseverate and difficulty with multiple lines of thought. Frankly, this is entirely consistent with his story of essentially coming to believe that he was entitled to be paid for the time he spent playing music and nothing more, and his failure then to significantly question that belief for years. Additionally, even assuming the belief had been questioned, an individual with a borderline defective intellectual level is not likely to grasp or understand the legal system such that he would appreciate the existence of a legal remedy. Thus, strictly in terms of his cognitive and intellectual capability, I do not believe Mr. Johnson recognized that there had been a wrong in terms of royalties or remuneration for his music, nor did he have the cognitive capability of pursing a remedy through the legal system.
Pltf. Exh. A [Doc. 62], p. 16. Although the psychological evaluation is, for purposes of the instant motion, unrebutted, the record also establishes that, during his 70+ years, Mr. Johnson has lived independently and been generally competent to manage his affairs unassisted.
The broad range of his deposition testimony indicates that Mr. Johnson has been married several times, had seven children, has bought and driven cars, rented various apartments, read the newspaper regularly, worked a number of jobs, led his own band, engaged agents to represent him, managed his own finances, and, in connection with music, traveled fairly extensively. He has never had any professional mental or psychological treatment. Johnson Depo., Pltf. Exh. A [Doc. # 62] (hereinafter "Depo."), pp. 37-38. Mr. Johnson testified that, even during the period when he was a heavy drinker, beginning in the 1940's, his drinking did not interfere with his understanding of money, his financial affairs generally, and his other activities. Depo. at 38-39; 54-56. Mr. Johnson stopped drinking "cold turkey" in 1989, more than 10 years before filing this suit, and has had no alcohol since. Depo. at 53.
Plaintiff does not offer a particular legal definition of mental competence in connection with his accrual argument, but appears to assert that his alleged inability to comprehend his injury or his cause of action is sufficient for the purpose urged. The Court is unpersuaded. Legal authority for plaintiff's argument is lacking. Plaintiff relies principally upon Clifford by Clifford v. United States, 738 F.2d 977, 980 (8th Cir.1984), a case which is clearly distinguishable. There the plaintiff was in a coma allegedly caused by the medical malpractice sued for in the case under the Federal Tort Claims Act. Because of the coma, the plaintiff was "at all times. . .unaware of the existence and cause of his injuries," for a reason alleged to be the defendant's own fault. Id. at 979. As further discussed below, these elements are not present in the instant case. Furthermore, in Clifford, the Eighth Circuit expressly distinguished its holding from the contrary rule applicable to "mental incapacity," noting a "well-recognized" rule that "mental incompetence generally does not toll the statute of limitations" in cases of that kind. Id. at 980.
As for knowledge of the alleged injuries, since the first recording in 1955, Mr. Johnson has clearly always been aware that he received no royalties or other payments based on the Berry/Johnson Songs, after his initial compensation for his work as a musician performing the songs in concert or in studio. Depo. at 106, 111-112, 114. Mr. Johnson also testified to his awareness that credit for the songs, as on record labels and in radio airplay, has always been limited to Mr. Berry. Depo. at 107, 108-111. Plaintiff's long-standing awareness of the fact that he was not being recognized and compensated as a co-creator of the music is thus established by the record. In the circumstances of this case, such awareness constitutes the pertinent knowledge of the injury upon which plaintiff's claims are premised.
Also dissimilar from Clifford is the fact that the intellectual limitations now urged by plaintiff can in no way be claimed to have been caused by Mr. Berry. Even as to the alcoholism on which plaintiff does not now so much rely, the evidentiary record fails to support an allegation that Mr. Berry ever encouraged Mr. Johnson's drinking. To the contrary, Mr. Johnson's deposition testimony indicates that Mr. Berry did nothing to encourage Mr. Johnson to drink, and in fact urged or even required moderation in Mr. Johnson's drinking. Depo. at 43, 47, 154, 159.
Awareness of injury and awareness of a legal cause of action are two distinct things, and the copyright cases earlier cited clearly suggest that the former is the trigger for accrual of a claim and the start of a statute of limitations. In effect, p...
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