Peer Intern. Corp. v. Latin American Music
| Decision Date | 14 August 2001 |
| Docket Number | No. 97-2875 (PG).,97-2875 (PG). |
| Citation | 161 F.Supp.2d 38 |
| Parties | PEER INTERNATIONAL CORP. et al., v. LATIN AMERICAN MUSIC CORP., et al., |
| Court | U.S. District Court — District of Puerto Rico |
Francisco A. Besosa, Axtmayer, Adsuar, Muniz& Goyco, San Juan, PA, for Plaintiff.
Eugenio C. Romero, Hato Rey, PR, Jorge A. Fernandez-Reboredo, for Defendants.
Before the Court is Plaintiffs' Peer International Corporation ("Peer Int'l"), Peer International Corporation of Puerto Rico ("Peer PR"), Southern Music Publishing Company, Inc. ("Southern"), Peermusic Ltd. ("Peermusic"), Sonido, Inc. d/b/a FAF Publishing ("FAF"), EMI Catalogue Partnership ("EMI Catalog"), EMI April Music, Inc. ("EMI April"), and Broadcast Music, Inc. ("BMI") (collectively referred to as "Peer") Motion for Summary Judgment (Dkt.104), Defendants Latin American Music Company, Inc.'s ("LAMCO") and ACEMLA de P.R., Inc.'s ("ACEMLA") Opposition to Peer Plaintiffs' Motion for Summary Judgment and Motion for Partial Summary Judgment (Dkt.131), and Peer's Reply and Opposition to Defendants' Motion (Dkts.150). At issue in this copyright infringement case is ownership and copyright infringement of more than four-hundred (400) songs.1
Summary judgment is appropriate where "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material, if under applicable substantive law, it may affect the result of the case and a dispute is genuine only if there is conflicting evidence that requires a trial to resolve the discrepancy. See Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 73 (1st Cir.1990). Once the movant has presented probative evidence establishing its entitlement to judgment, the party opposing the motion must set forth specific facts demonstrating that there is a material and genuine issue for trial. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether summary judgment is warranted, the court views the facts alleged in the light most favorable to the non-moving party and must indulge all inferences in favor of that party. See Rossy v. Roche Products, Inc., 880 F.2d 621, 624 (1st Cir. 1989).
Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996).
Cross-motions for summary judgment are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. If any such issue exists it must be disposed of by a plenary trial and not on summary judgment. See Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968). See also Redman v. Warrener, 516 F.2d 766, 768 & n. 2 (1st Cir.1975); 6 J. MOORE, MOORE'S FEDERAL PRACTICE ¶ 56.13 (2d ed 1981) () (footnotes omitted).
All told, Plaintiffs allege that they own and control the copyrights to 468 musical compositions at issue in this case.2 Defendants dispute this, claiming that they hold a legal priority over 294 of the 468. Defendants admit they do not own or have a legal priority over 174 of the musical compositions.3
Plaintiffs allege to have acquired the copyrights to the songs in question through assignments with the composers or their heirs. Plaintiffs have granted to BMI and ASCAP non-exclusive licenses to in turn issue and administer public performance licenses to broadcasters. The assignments granted by the composers to the plaintiffs are made in standard forms redacted by the plaintiffs.
More specifically, Peermusic contends that they own and control the copyrights in musical compositions Nos. 1 to 407.4
Sondio, Inc., d/b/a FAF Publishing ("FAF") is allegedly the exclusive licensee of the copyrights in the musical compositions Nos. 408 to 451 ("FAF Compositions"). The FAF Compositions were originally owned by Fania Publishing Co. ("Fania") by virtue of songwriter agreements made directly with the author of the FAF Compositions. At all times relevant hereto, Fania Publishing was a wholly-owned subsidiary of Fania Records, Inc. ("Fania Records"). By agreement dated October 23, 1979, Fania Records assigned all of the copyrights and Composer Agreements owned by Fania Records and its wholly-owned subsidiaries to Valsyn, S.A. ("Valsyn").
By agreement dated October 1, 1986, as amended by letter agreement on September 24, 1997, Valsyn granted plaintiff FAF the exclusive right and license to exploit and administer Valsyn's publishing rights in the FAF Compositions and to defend, prosecute, and settle, in FAF's own name, all claims for copyright infringement arising in the United States or Puerto Rico during the period from October 1, 1986 through December 31, 1999.
EMI Catalogue acquired the rights to the EMI Catalogue Compositions (except for "EI Africano") from Morro Music Corp. ("Morro") in a series of transactions in 1982 and 1983. On June 16, 1982, Morro (together with Big Town Music, Inc., Cuban Music Corp. and Ariston Music, Inc.) merged into Unart Music Corporation. The Certificate of Merger and Ownership dated June 16, 1982, was recorded in the U.S. Copyright Office on January 24, 1983, in volume 1962, pages 368-73.
On June 17, 1982, Unart Music Corporation, among others, merged into United Artists Corporation. The Certificate of Ownership and Merger merging U.A. Music International, Inc., Unart Music Corporation, U.A. Cinemusic, Inc., United Artists Music Co., Inc., and United Artists Television, Inc. into United Artists Corporation, dated June 17, 1982, was recorded in the U.S. Copyright Office on January 24, 1983, vol.1962, pages 374-80, 407-14.
By an agreement dated December 15, 1982, United Artists Corporation assigned all of the copyrights in its musical works, including the EMI Catalogue Compositions, to CBS, Inc. By an agreement dated September 23, 1983, CBS, Inc. assigned to CBS Catalogue Partnership, its successors, and assigns, all of the rights to the copyrights it acquired from United Artists pursuant to the December 15, 1982 Main Agreement. In August 1989, CBS Catalogue Partnership changed its name to SBK Catalogue Partnership, and thereafter SBK Catalogue Partnership changed its name to EMI Catalogue Partnership. A true and correct copy of the Confirmation of Name Change and Continuance of Ownership of Copyright Interests was recorded in the U.S. Copyright Office on August 7, 1989, in volume 2487, pages 286-88. Thus, Plaintiffs allege, EMI Catalogue, through its predecessor-in-interest Morro, acquired ownership of the copyrights in musical compositions Nos. 452 to 468 (the "EMI Compositions").5
In early 1980, L. Raul Bernard founded LAMCO and ACEMLA to represent Latin American authors and composers for the protection of their copyrights. LAMCO is a music publishing company that obtains exclusive copyrights from music composers or their legal representatives. ACEMLA calls itself a performing rights society that represents authors and composers in the monitoring of their work and in the collection and administration of their royalties. The Court in ACEMLA v. Copyright Tribunal, 763 F.2d 101, 107-08 (2d Cir.1985), determined that ACEMLA is a performing rights society with broadcasters through non-exclusive performing rights licenses.6 On November 3, 1986 Sociedad Puertorriquena De Autores, Compositores y Editores De Musica ("SPACEM"), which had been affiliated to ASCAP for several years, licensed ACEMLA to manage its catalog and collect its royalties for a term of five (5) years. The assignment added 247 composers and about 581 titles to ACEMLA's catalog. During 1992-93, SPACEM was dissolved and many of its members became affiliated with ACEMLA. As a result of this, about 174 songs of 13 authors of the SPACEM catalog that did not sign with ACEMLA and that are claimed by the plaintiffs remained in ACEMLA's catalog undetected for a while. ACEMLA has since revised its catalog. Defendants also allege as a defense that Plaintiffs have not complied with the payment of royalties to the composers, nor with the submission of periodic reports of performance or payment liquidation.
For their part, Plaintiffs contend that Defendants LAMCO and ACEMLA hold themselves out as the owners and/or controllers of the copyrights, including public performance rights, in the Publishers' Compositions and have issued licenses to third parties to exploit the copyrights in the Publishers' Compositions. Defendants' ACEMLA website, located at www.acemla.com, contains substantial portions of recordings of the following musical compositions claimed by plaintiffs: El Africano (Wilfredo Martinez and Calixto Ochoa), Rebeldia (Pepito Lacomba), Anacaona (Tite Curet Alonso), Periodico de Ayer (Tite Curet Alonso), Una Tercera Persona (by Luz Celenia Tirado), Nuestra Sangre (by Flor Morales Ramos, a/k/a Ramito), Genesis (by Guillermo Venegas), and Sombras (by Carlos Brito and R. Sansores). Any person visiting ACEMLA's website with a properly configured computer can play and listen to each of these recordings at will.7
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