Songbyrd, Inc. v. Bearsville Records, Inc.

Citation104 F.3d 773
Decision Date04 February 1997
Docket NumberNo. 96-30670,96-30670
PartiesSONGBYRD, INC., Plaintiff-Appellant, v. BEARSVILLE RECORDS, INC.; Albert B. Grossman, Estate of, erroneously sued as Bearsville Records, Inc., doing business as Bearsville Records, Defendants-Appellees. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Justin Asher Zitler, New Orleans, LA, for plaintiff-appellant.

Christina H. Belew, New Orleans, LA, Denise C. Puente, Simon, Peragine, Smith & Redfearn, New Orleans, LA, for defendants-appellees.

Appeal from the U.S. District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant SongByrd, Inc. (SongByrd) appeals from the district court's dismissal of its action seeking to recover from Defendant-Appellee the Estate of Albert B. Grossman d/b/a Bearsville Records (Bearsville), several master tapes recorded by a legendary New Orleans musician. Concluding that (1) the district court improperly classified SongByrd's suit as a personal rather than a real action, (2) real actions are imprescriptible under Louisiana law, and (3) Bearsville has yet to establish that it gave SongByrd's predecessors-in-interest actual notice of Bearsville's intent to possess the tapes for itself, we reverse the district court's summary judgment ruling and remand for further proceedings consistent with this opinion.

I FACTS AND PROCEEDINGS

The late Henry Roeland Byrd, also known as "Professor Longhair," was an influential New Orleans rhythm-and-blues pianist and composer, and is widely regarded as one of the primary inspirations for the renaissance of New Orleans popular music over the last thirty years. His numerous hits included original compositions such as "Tipitina" and "Go to the Mardi Gras," as well as his famous renditions of Earl King's "Big Chief." After achieving modest commercial success as a local performer and recording artist in the 1940's and 1950's, Byrd fell on hard times during the 1960's. His fortunes began to change for the better in 1970, however, when New Orleans music aficionado Arthur "Quint" Davis, along with others, founded the New Orleans Jazz and Heritage Festival ("JazzFest"). Needing talented performers for JazzFest, Davis located Byrd in 1971 working in an obscure record store in New Orleans and transformed him into a perennial star attraction of the JazzFest and other venues from that time until his death in 1980. 1

Soon after Byrd's first performance at JazzFest, Davis, acting as the pianist's manager, and Parker Dinkins, an attorney, arranged for Byrd to make several "master recordings" at a Baton Rouge recording studio known as Deep South Recorders. These master recordings consist of four reels of 8-track tape which could be "mixed" to produce either demonstration tapes or final recordings suitable for the production of records, cassettes, and compact discs. According to SongByrd, several demonstration tapes produced from these master recordings found their way to Bearsville Records, Inc., a recording studio and record company located in Woodstock, New York and operated by For reasons that are unclear but not material to this appeal, the Bearsville recording sessions proved unsatisfactory. For equally unclear reasons, Davis and Dinkins wanted Grossman to be able either to listen to or play for others the full version of the Baton Rouge master recordings. In furtherance of this desire, Davis and Dinkins caused the four "master recording" tapes to be delivered to Grossman in New York. According to the as yet unrefuted affidavit of Davis, these tapes were delivered to Grossman, "as demonstration tapes only, without any intent for either Albert Grossman or Bearsville Records, Inc. to possess these aforementioned tapes as owner." Also for reasons as yet not explained by either party, the tapes remained in Grossman's possession for many years thereafter.

Grossman. Impressed by the demonstration tapes, Grossman apparently arranged with Davis and Dinkins for Byrd and another New Orleans musician to travel to Bearsville's studio for a recording session.

Acting on behalf of Davis and Byrd in 1975, Dinkins wrote two letters to Bearsville--the first addressed to a George James, the second to Grossman himself--requesting that Bearsville return the master recording tapes. Bearsville made no response whatsoever to Dinkins' letters (or at least has not introduced any evidence of a response). Dinkins, for reasons as yet unknown, did not press his request any further.

After Albert Grossman's death in the mid 1980's, Bearsville Records, Inc. was dissolved, but Grossman's estate continued to do business as "Bearsville Records." Even though it no longer signs artists or promotes their products, Bearsville Records still operates a recording studio which it leases to record labels and third parties; it also licenses a catalog of recordings by artists originally under contract with Bearsville Records, Inc. Acting in this latter capacity, Bearsville licensed certain of the Byrd master recordings to Rounder Records Corporation of Cambridge, Massachusetts (Rounder) for an advance against royalties.

In 1987, Rounder released Professor Longhair, Houseparty New Orleans Style: The Lost Sessions, an album that contained 11 songs or "tracks" made from Byrd's original Baton Rouge master recordings. This release garnered Byrd a posthumous Grammy Award for Best Traditional Blues Album of 1987. The liner notes of the Rounder album make hardly any reference to Bearsville and no reference whatsoever to the contractual agreement between Rounder and Bearsville. 2 Bearsville Records also licensed certain of the master recordings to another record company, Rhino Records (Rhino). According to SongByrd's petition, Rhino released an album, titled "Mardi Gras in Baton Rouge," featuring seven tracks from the Baton Rouge master recordings.

In 1993, SongByrd, Inc. was incorporated and commenced business as successor-in-interest to the intellectual property rights of Byrd and his deceased widow, Alice Walton Byrd. In 1995, SongByrd filed this lawsuit in state court in New Orleans against Bearsville Records, Inc. SongByrd's "Petition in Revendication" sought a judgment (1) recognizing its ownership of the master recordings, (2) ordering return of the recordings, and (3) awarding damages. Bearsville timely removed the suit to federal court and subsequently filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and (6), asserting (a) lack of personal jurisdiction over Bearsville and (b) failure of SongByrd to state a cause of action because SongByrd's claims were barred by liberative prescription under Louisiana law. As both parties submitted affidavits and exhibits outside the pleadings, however, the district court correctly treated Bearsville's motion to dismiss as a motion for summary judgment under Fed.R.Civ.P. 56(c). 3 Pretermitting the question of personal

jurisdiction, the district court then granted the motion and dismissed SongByrd's case. The court held that SongByrd's action was barred by liberative prescription and also rejected SongByrd's argument that at all times Bearsville has been only a precarious possessor and therefore prescription has never commenced to run. SongByrd timely filed its notice of appeal from the district court's ruling.

II ANALYSIS
A. Standard of Review

When a district court treats a Rule 12(b)(6) motion as a motion for summary judgment under Rule 56(c) because matters outside the pleadings are presented to and not excluded by the court, we review the grant of such a motion just as we would any other grant of summary judgment--that is, we review the grant of summary judgment de novo and apply the same legal standards as the district court. 4 Accordingly, summary judgement is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 5 Further, we construe all evidence in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes. 6

B. Applicable Law--Erie-Bound
1. Special Louisiana Erie Considerations

The basis of our jurisdiction, and that of the district court, to decide the instant case is diversity of citizenship, under which a federal court's obligation is to apply substantive state law. In Louisiana this obligation has special dimensions because of our unique Civilian tradition. We remain ever aware of the late Judge Rubin's caution to federal Erie courts applying Louisiana Civil law to steer clear of the common law principle of stare decisis and to apply instead the distinctly Civilian doctrine of jurisprudence constante:

Because of the reviewing power of [Louisiana] appellate courts, the [Louisiana] trial judge may pay great respect to the decisions of these courts. He is not bound to do so, however, because the doctrine of stare decisis does not apply. Instead, each judge, trial and appellate, may consult the civil code and draw anew from its principles. Interpretation of the code and other sources of law is appropriate for each judge. The judge is guided much more by doctrine, as expounded in legal treatises by legal scholars, than by the decisions of colleagues.... Instead of stare decisis, the rule is one of deference to a series of decisions, jurisprudence constante. 7

Emphatically elaborating on the proposition that Erie "does not command blind allegiance to [any] case on all fours with the case before the court, 8" now-Chief Judge Politz wrote that:

If anything, this flexibility is even greater when a federal court sits as a Erie court applying the Louisiana civil law. In such cases, "the Erie obligation is to the [Civil] Code, the 'solemn expression of legislative will.' " Shelp, 333...

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