Roberts v. Broadwayhd LLC

• Decision Date: 09 February 2021
• Docket Number: 19 Civ. 9200 (KPF)
• Citation: 518 F.Supp.3d 719
• Parties: Chapman ROBERTS, Plaintiff, v. BROADWAYHD LLC, Broadway Television Network, Inc., Broadway Worldwide, Inc., BroadwayOnline.com, Inc., Bruce Brandwen Productions, Inc., Bruce Brandwen, Leiber Stoller Productions, Inc., Michael Stoller, Estate of Jerome Leiber, Amazon Digital Services LLC, and Sony/ATV Music Publishing, LLC, Defendants.
• Court: U.S. District Court — Southern District of New York

518 F.Supp.3d 719

Chapman ROBERTS, Plaintiff,

v.BROADWAYHD LLC, Broadway Television Network, Inc., Broadway Worldwide, Inc., BroadwayOnline.com, Inc., Bruce Brandwen Productions, Inc., Bruce Brandwen, Leiber Stoller Productions, Inc., Michael Stoller, Estate of Jerome Leiber, Amazon Digital Services LLC, and Sony/ATV Music Publishing, LLC, Defendants.

19 Civ. 9200 (KPF)

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

Signed February 9, 2021

Tatsuya Adachi, David Leichtman, Leichtman Law PLLC, New York, NY, for Plaintiff.

Nicolas Jampol, Rachel R. Goldberg, Davis Wright Tremaine LLP, Los Angeles, CA, Tyler Maulsby, Maura Wogan, Viviane Scott, Frankfurt Kurnit Klein & Selz P.C., Samuel Bayard, Davis Wright Tremaine LLP, New York, NY, for Defendant BroadwayHD LLC.

Richard H. Bergman, Bergman & Jacobs, P.A., Hollywood, FL, for Defendants Broadway Television Network, Inc., Broadway Worldwide, Inc., BroadwayOnline.com, Inc., Bruce Brandwen Productions, Inc., Bruce Brandwen.

James Edward Geringer, Klarquist Sparkman, LLP, Portland, OR, Nicolas Jampol, Rachel R. Goldberg, Davis Wright Tremaine LLP, Los Angeles, CA, Samuel Bayard, Davis Wright Tremaine LLP, New York, NY, for Defendant Amazon Digital Services LLC.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Chapman Roberts brings this action under the Copyright Act, Pub. L. No. 94-553, 90 Stat. 2541 (1976), for direct and contributory copyright infringement; under the Digital Millennium Copyright Act, Public L. No. 105-304, 112 Stat. 2860 (1998), for dissemination of false copyright management information ("CMI"); and under the common law for unjust enrichment. The suit concerns the distribution by various means since 2000 of a filmed version of the musical Smokey Joe's Café (the "Recording"), which includes Plaintiff's copyrighted vocal arrangements (the "Vocal Arrangements"). Plaintiff alleges that Bruce Brandwen as an individual; Bruce Brandwen Productions, Inc., Broadway Television Network, Inc. ("BTN"), Broadway Worldwide, Inc., and BroadwayOnline.com, Inc. (collectively, the "Brandwen Corporate Defendants," and with Bruce Brandwen, the "Brandwen Defendants"); Leiber Stoller Productions, Inc., Michael Stoller, and the Estate of Jerome Leiber (collectively, the "L&S Defendants"); Sony/ATV Music Publishing, Inc. ("SATV"); Amazon Digital Services LLC ("Amazon"); and BroadwayHD LLC ("BroadwayHD") (all collectively, "Defendants") each played a role in, and improperly profited from, the distribution of the Vocal Arrangements without Plaintiff's permission and thereby infringed his copyright.

In three separate motions, the majority of the Defendants move to dismiss Plaintiff's First Amended Complaint ("FAC") (Dkt. #41), the operative pleading. For the reasons set forth below, the Court denies Bruce Brandwen's motion, grants the L&S Defendants’ motion, and grants SATV's motion. The Court reserves decision on Plaintiff's request for leave to file a Second Amended Complaint.

BACKGROUND¹

A. The Parties

Plaintiff Chapman Roberts is a musician, performer, and producer whose vocal arrangements have been used in many Broadway and West End productions. (FAC ¶¶ 2, 30). Plaintiff created the Vocal Arrangements for the Broadway production of Smokey Joe's Café (the "Musical") in 1994 and registered the Vocal Arrangements with the U.S. Copyright Office, effective May 23, 1995. (Id. at 8). Plaintiff is the sole and exclusive owner of the copyright in the Vocal Arrangements. (Id. ).

Defendant BroadwayHD is a New York limited liability company engaged in media distribution, with its principal place of business in New York, New York. (FAC ¶ 14).

Defendant Bruce Brandwen is a Broadway producer; the founder and president of BTN, a worldwide distributor of recorded Broadway performances; and the founder and owner of Broadway Worldwide, Brandwen Productions, and BroadwayOnline.com. (FAC ¶ 4). He is domiciled in the state of New York. (Id. at ¶ 19). BTN, Broadway Worldwide, and BroadwayOnline.com are Delaware corporations with a principal place of business in New York, New York. (Id. at ¶¶ 15-17). Bruce Brandwen Productions is a New York corporation with its principal place of business in New York, New York. (Id. at ¶ 18).

Mike Stoller is an individual domiciled in California who regularly conducts business in New York, including business relevant to this action. (FAC ¶ 22). Jerome Leiber was a natural person domiciled in California who regularly conducted business in New York, including business relevant to this action. (Id. at ¶ 23). The Estate of Jerome Leiber was opened and domiciled in California and is the legal entity to be held liable for actions committed by Jerome Leiber. (Id. ).² Leiber and Stoller are and were songwriters who were the owners and operators of the entities Jerry Leiber Music, Mike Stoller Music, Mike and Jerry Music LLC, and Trio Music Company, Inc., all of which were predecessor entities to Defendant Leiber Stoller Productions. (Id. at ¶ 5). Defendant Leiber Stoller Productions is a California corporation engaged in the business of music publishing and distribution, and conducts significant business in New York, including business relevant to this action. (Id. at ¶ 21).

Defendant SATV is a music publishing company owned by Sony Entertainment, Inc. (FAC ¶ 7). SATV is a Delaware limited liability company with its principal place of business in New York, New York. (Id. at ¶ 24).

Defendant Amazon is a Delaware limited liability company with its principal place of business in Seattle, Washington, and which conducts a significant amount of business in New York, New York. (FAC ¶ 20).

B. Factual Background

In 1994, Plaintiff created the Vocal Arrangements for the Musical, which itself was based on original songs written by Defendants Jerome Leiber and Mike Stoller. (FAC ¶ 31). Plaintiff created the Vocal Arrangements pursuant to a Vocal Arranger Agreement, dated May 1, 1994, between Plaintiff and non-party L&S Broadway Company, which agreement was then amended in 1996. (Id. at ¶ 32). The Vocal Arranger Agreement provides that, other than limited license rights to perform the Vocal Arrangements in limited types of live performances and to record a cast album, the Vocal Arrangements may not be performed, transcribed, recreated, copied, published, or recorded without permission from Plaintiff. (Id. ). The Vocal Arranger Agreement also provides that Plaintiff retains sole ownership in the copyright to his Vocal Arrangements. (Id. ). Plaintiff registered a copyright for the Vocal Arrangements with the United States Copyright Office as the sole owner of the copyright, under Reg. No. PAu 1-994-441, with an effective date of May 23, 1995. (Id. at ¶ 33; id. at Ex. A).

At some time in 1998 or 1999, L&S Broadway Company assigned its limited license rights to use the Vocal Arrangements to one or more of Leiber and Stoller individually, or to one or more of their other corporate entities, who at some point then assigned those rights to Defendant Leiber Stoller Productions. (FAC ¶ 34). Around the same time, L&S Broadway Company or Leiber Stoller Productions (or its predecessors) granted Defendant BTN permission to use Leiber and Stoller's musical compositions in a video recording of the Musical. (Id. at ¶ 35).

In 1999, BTN recorded two performances of the Musical without Plaintiff's permission. (FAC ¶ 36). BTN received a distribution license from Leiber Stoller Productions (or its predecessors) for the Recording. (Id. ). Later in 1999, Plaintiff learned that the Recording had been made without his permission and contacted BTN to object to its distribution. (Id. at ¶ 37). BTN asked for retroactive permission to commercially distribute the Recording to the public (id. ), but BTN and Plaintiff failed to come to an agreement regarding use of Plaintiff's Vocal Arrangements (id. at ¶ 38). BTN nevertheless moved forward with distributing the Recording. (Id. at ¶ 39). BTN did not obtain permission from Plaintiff to record his Vocal Arrangements, and BTN failed to provide Plaintiff with compensation for the Recording. (Id. ). BTN televised the Recording on pay-per-view from approximately 2000 to 2001. (Id. at ¶ 40). Plaintiff was aware of the initial pay-per-view distribution in 2000 or 2001, but did not sue BTN for copyright infringement at that time. (Id. ). The Brandwen Corporate Defendants continued to distribute the Recording from 2000 to 2013, without permission from, or notice or compensation to, Plaintiff. (Id. at ¶ 41).

The initial license from Leiber Stoller Productions (or its predecessors) to exploit and distribute the Recording expired in 2014. (FAC ¶ 44). In 2007, Leiber Stoller Productions (or its predecessors) either sold its publishing rights catalog to SATV or granted SATV the rights to administer the catalog, retaining a royalty right. (Id. at ¶ 46). In 2018, without notice to Plaintiff, Broadway Worldwide entered into a new licensing agreement with SATV for further distribution rights for the Recording, and subsequently purported to grant those rights to BroadwayHD for digital streaming. (Id. at ¶¶ 47-48). Beginning in September 2019, BroadwayHD used the Recording to promote its service and streamed the Recording on the internet, including over its own platform and through Defendant Amazon's services, without authorization from, or attribution or compensation to, Plaintiff. (Id. at ¶¶ 49, 52-53, 57).

C. Procedural History

Plaintiff filed the original complaint against the Brandwen Defendants and BroadwayHD on October 4, 2019, seeking relief for direct and contributory copyright infringement and dissemination of false CMI. (See Dkt. #1). The case was originally assigned to the Honorable Analisa Torres, who entered a Civil Case Management Plan and Scheduling Order on December 3, 2019 (Dkt. #18), and referred the matter to Magistrate Judge Robert W. Lehrburger for settlement negotiations (Dkt. #19). The Brandwen Defendants and BroadwayHD answered the original complaint on ...