Merchant v. Lymon

• Decision Date: 23 July 1993
• Docket Number: No. 87 Civ. 7199 (VLB) (NRB).,87 Civ. 7199 (VLB) (NRB).
• Citation: 828 F. Supp. 1048
• Parties: Jimmy MERCHANT and Herman Santiago, Plaintiffs, v. Emira LYMON, as Widow and Administratrix of the Estate of Frank Lymon, Morris Levy, Big Seven Music Corp., Roulette Records, Inc., and Broadcast Music, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

828 F. Supp. 1048

Jimmy MERCHANT and Herman Santiago, Plaintiffs, v. Emira LYMON, as Widow and Administratrix of the Estate of Frank Lymon, Morris Levy, Big Seven Music Corp., Roulette Records, Inc., and Broadcast Music, Inc., Defendants.

No. 87 Civ. 7199 (VLB) (NRB).

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

July 23, 1993.

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Carl E. Person, New York City, for plaintiffs.

Edwards & Angell, New York City (Ira G. Greenberg, of counsel), for defendants.

Silverman & Shulman, P.C., New York City (Alan L. Shulman, of counsel), for intervenor.

BUCHWALD, United States Magistrate Judge.

This litigation is primarily an action for a declaration of rights to the copyright of the hit song Why Do Fools Fall in Love? ("Fools"). In their complaint, filed in 1987, plaintiffs claim, inter alia, that the copyright registration, as filed and as amended, inaccurately attributes authorship credit for Fools and that they are co-authors of the song with Frank Lymon. As co-authors, each plaintiff asserts a claim to an ownership share of the Fools copyright and a proportionate share of the royalties earned from its exploitation.

Plaintiffs are two of the original members of the singing group, Frankie Lymon and the Teenagers — comprised also of Lymon, Joe Negroni and Sherman Garnes, each now deceased — who in 1956 recorded Fools for Gee Records, then owned and operated by George Goldner, also now deceased. Contemporaneously with the recording of Fools, Goldner allegedly informed plaintiffs that he would handle the formalities of copyrighting the song, and, later, that only two of the three authors could be listed on the copyright. Subsequently, Goldner filed the Fools copyright with the Copyright Office in 1956, initially listing himself and Lymon as sole coauthors.¹ In the years between the release of Fools and the initiation of the current lawsuit, plaintiffs inquired about their interest in Fools on a number of occasions, but took no formal legal action until the filing of this lawsuit.

Prior to the parties consenting to trial before a United States Magistrate Judge, the defendants moved for summary judgment predicated on various affirmative defenses arising from plaintiffs' delay in bringing this action. Of particular relevance here are defendants' arguments that plaintiffs' claims are barred by the statute of limitations and the doctrines of laches and equitable estoppel. Plaintiffs countered that they were entitled to a tolling of the statute of limitations due to the defendants' fraudulent concealment and exercise of duress over plaintiffs. Specifically, plaintiffs maintain that Levy told them that they were owed nothing and, on two occasions, that if they persisted in their inquiries he would have them killed. In addressing these arguments, Judge Broderick identified four salient factors concerning plaintiffs' delay:

(1) plaintiffs' lack of sophistication about the music business, including the fact that plaintiffs were 15 at the time they recorded Fools and both had limited education; (2) fraud perpetrated against plaintiffs by George Goldner, Morris Levy and their affiliates concerning the ownership of the Fools copyright; (3) fear that pressing their claims could result in violence from Morris Levy; and, (4) the fact that plaintiffs, even taking into account all of the above factors, clearly slept on their rights.

Memorandum Order dated April 15, 1992 at p. 6 (the "April 15 Order"), reaffirmed on September 18, 1992, (the "September 18 Order").

With respect to whether the doctrine of fraudulent concealment tolled the running of the statute of limitations, the court found that genuine issues of material fact existed as to whether Goldner, Levy and their affiliates deliberately concealed from plaintiffs the existence of plaintiffs' cause of action and deliberately diverted the Fools royalties. April 15 Order at 8. The court also found that factual issues existed as to when plaintiffs knew or should have known that they were being defrauded. Id.

Addressing the issue of whether plaintiffs were entitled to a duress tolling to the statute of limitations because of their fear that Levy would retaliate to a lawsuit with violence, Judge Broderick held, as an initial matter, that recognition of the duress toll was consistent with the purposes of the Copyright Act and that New York, as the forum state, provided the relevant rule of decision. The court noted that, under New York law, a duress tolling was only applicable where "duress is part of the cause of action alleged." Id. at 11 (citation omitted). Applying this restriction, the court postulated that the entire course of the 37 year relationship between the parties and the manner in which plaintiffs assert that title to the Fools copyright was acquired by the defendants "suggests a continuing pattern of duress which was directed not only toward preventing plaintiffs from suing, but toward allowing defendants to acquire and hold title to the Fools copyright." Id. at 12. Therefore, despite the fact that plaintiffs asserted no claims which explicitly had duress or coercion as an element, the court found that a factual question existed as to whether "the duress which may have been exercised by the defendants was so integrally related to the plaintiffs cause of action as to toll the statute." Id.

Next, Judge Broderick turned to defendants' assertion of laches and equitable estoppel against plaintiffs. With respect to the doctrine of laches the court balanced plaintiffs' delay against the prejudice suffered by the defendants by virtue of the delay and found that, due to the wrongful conduct of Goldner and the Levy defendants, there was a genuine issue of material fact as to whether plaintiffs' suit was timely commenced. Id. at 15. Similarly, the court found that a factual question existed as to whether the Levy defendants' wrongful conduct precluded their assertion of an equitable estoppel defense. Accordingly, the court denied the Levy defendants' motion for summary judgment.

Having previously dismissed the claims against defendant Broadcast Music Inc. on February 5, 1992, the court held that the justifications for plaintiffs' delay had no application to their claims against Emira Lymon — Frank Lymon's widow and, as such, the successor to his copyright interest. Consequently, the only remaining named defendants in the action are the Levy defendants.²

Factual Background

Trial of the liability issues was held, in part, before a jury and, in part, before the Court from November 10-16, 1992.³ On behalf of plaintiffs the following witnesses testified: plaintiffs themselves; Kenneth Bobo, a some time member of The Teenagers; Gigi Merchant, plaintiff Merchant's sister; Herbert Cox, a performer with The Cleftones, a singing group; Philip Groia, a writer; and Elder Henix. Plaintiffs also introduced deposition testimony of Levy who had died in the late 1980's, subsequent to the filing of this lawsuit. Defendants called four witnesses: Philip Kahl, a former employee of Patricia Music; Jeri Spencer; Emira Lymon; and Howard Fisher, former controller of Roulette Records.

The factual issues presented at trial, as narrowed by the April 15 Order, can be placed into two broad categories. First, as noted above, the parties disputed whether the copyright certificate filed with the Copyright Office, and later amended, accurately reflected the authorship of Fools. Plaintiffs claimed that, despite Goldner's listing as a co-author on the original copyright, he made no contribution to the writing of Fools, and rather that plaintiffs co-wrote the song with Lymon. Second, the parties disputed whether plaintiffs were justified in waiting approximately twenty-six years from the time they reached majority under New York law in 1961 until December 14, 1987 to pursue their claims. A review of the trial testimony will be helpful in placing these disputes and the jury's verdict in context.⁴

Plaintiffs testified that in April of 1955, Santiago, Merchant, Garnes and Negroni formed a singing group, eventually known as The Teenagers, that rehearsed at a local junior high school and at other locations around Washington Heights. At first, the group sang popular songs written by other musicians, but they later began to create their own music. Inspired by love letters given to the group by a neighbor, plaintiffs, neither of whom had any formal musical training, developed the melody and lyrics for Fools, a song that the group initially called Birds Sing So Gay. In the original arrangement of Fools, Santiago sang the lead voice and the other group members sang back up. Three witnesses for plaintiff, Gigi Merchant, Howard Bobo and Elder Henix, testified that they heard the original four group members rehearse Birds Sing So Gay prior to Lymon's joining the group. Not until June of 1955, approximately two months after the plaintiffs began to write and rehearse this early version of Fools, did Lymon join the group.

Due in part to Lymon's presence, a member of another local singing group introduced The Teenagers to Goldner, who invited them to audition in September of 1955 at Gee Records. After hearing the group perform Fools, Goldner suggested that the group rehearse the song with Lymon replacing Santiago as the lead singer. In December of 1955, the group returned to Gee Records' studios and, accompanied by a band of studio musicians, recorded Fools. At the time Fools was recorded, plaintiffs were fifteen years old and Lymon was twelve.

The parties offer slightly different, but not inconsistent, versions of the events that led up to the writing and recording of the final version of Fools. According to Santiago, Lymon made significant embellishments to the song during the time between the audition and recording session, which included, among other changes, adjusting the song to suit Lymon's vocal range. Plaintiffs assert that...