Wallert v. Atlan
| Decision Date | 26 October 2015 |
| Docket Number | No. 14 Civ. 4099(PAE).,14 Civ. 4099(PAE). |
| Citation | 141 F.Supp.3d 258 |
| Parties | Charles WALLERT, Plaintiff, v. Guillaume Jean ATLAN, Sidney Dov Prosper Benichou p/k/a Mani Hoffman, Lafesse Records, Universal Music Publishing, Inc., Universal Music Publishing, Universal Music–MGB Songs, UMG Recordings, Inc., Universal International Music B.V., Cyclo Records, Cyclo Music, Serhat Bedük p/k/a Bedük, Audiology Records, Seyhan Müzik, Does 1–50, and XYZ Corporations 1–50, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Dennis H. Cavanaugh, DH Cavanuagh Associates, New York, NY, Nadine Yaara From, for Plaintiff.
Brian D. Caplan, Caplan & Ross, LLP, Edward Peter Grosz, Reitler Kailas & Rosenblatt, L.L.C., Gary Philip Adelman, Adelman Matz P.C., New York, NY, for Defendants.
PAUL A. ENGELMAYER
, District Judge:
This case involves claims of copyright infringement of a musical work and breach of a contract providing for licensing royalties relating to that work. Plaintiff Charles Wallert alleges that in 1978, he composed and produced a musical composition and recording, "The Rock," that later was infringed upon by a series of malefactors. The infringements began, Wallert alleges, in 2000, when three defendants1 wrote and recorded the song "Starlight." "Starlight" later was licensed in France, the United States, and elsewhere by entities, including three other defendants.2 Next, Wallert alleges, in 2008, defendant Serhat Bedük composed and produced a composition and recording, "Hot Bitch," which also infringed "The Rock," and was published and distributed by defendant Audiology Records ("Audiology"). Finally, Wallert claims, defendant Universal International Music B.V. ("UIM BV"), which holds the distribution rights of "The Rock," has failed to pay him royalties for its licensing of "The Rock," including for the sampling of that recording on infringing records, such as "Starlight."
Based on this narrative, Wallert brings claims of copyright infringement, under the United States Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.,
and separately on the laws of 11 other nations3 ; breach of contract; breach of the covenant of good faith and fair dealing; wrongful interference with prospective contractual relations; and unjust enrichment. Defendants are (1) the Starlight defendants; (2) the Universal publishing defendants, UMG Recordings, Inc. ("UMG"), and UIM BV (collectively, the "Universal defendants"); (3) Cyclo Records and Cyclo Music; (4) Bediik, Audiology, and Seyhan Muzik (collectively, the "Hot Bitch defendants"); (5) Does 1–50; and (6) XYZ Corporations 1–50. Wallert seeks injunctive relief, and statutory and punitive damages of at least $5 million.
Two motions are pending: First, Hoffman moves to dismiss for lack of personal jurisdiction, under Federal Rule of Civil Procedure 12(b)(2)
. Second, the Universal defendants move to dismiss Wallert's Fourth Amended Complaint ("FAC"), under Rule 12(b)(6). Wallert opposes both motions, and moves for leave to take jurisdictional discovery.
For the following reasons, the Court grants Hoffman's and the Universal defendants' motions to dismiss, and denies Wallert's motion for leave to take jurisdictional discovery.
As noted, Wallert brings copyright infringement claims, in addition to an array of claims under state law.
The Court first recounts the composition, production, and distribution history of "The Rock," and the factual allegations relating to the three instances in which Wallert alleges copyright infringement. These allegations also underlie Wallert's claims of wrongful interference with prospective contractual relations and unjust enrichment.
The Court then reviews the allegations relating to the licensing of the recording of "The Rock," which underlie his claims of breach of contract under California and New York law, tortious breach of the covenant of good faith and fair dealing under California law, and wrongful interference with prospective contractual relations.
Wallert, a music producer and composer, has produced and/or composed songs for recording artists including George Benson, Cuba Gooding, and Dionne Warwick. FAC ¶ 21. In 1978, Wallert, with Michael Foreman and A1 Gee, wrote the music and lyrics to a composition called "The Rock" ("The Rock composition"). Id. 22. The Rock composition was copublished by Moonstruck Sounds, Ltd. ("Moonstruck"), of which Wallert is the sole owner and successor in interest to all rights, and Mich–Den Music, which is Foreman's publishing company. Id. ¶¶ 21–22. Moonstruck and Mich–Den Music also registered The Rock composition in the Copyright Office, at registration number PA37208. Id. ¶ 25. In 1978, The Rock composition also was registered with Broadcast Music Inc. ("BMI") for licensing. Id. 27.
Also in 1978, Wallert produced and financed a master sound recording of "The Rock" ("The Rock recording"), which was performed by a group of singers and musicians known as "East Coast." Id. ¶ 23. The Rock recording was later released that year by Family Music Productions, Inc., which conducted business as Family Records ("Family Records"). Id. Family Records, which ceased to do business in 1980, was a New York corporation solely owned by Wallert; he is the sole successor in interest to all rights held by Family Records. Id.
The Rock recording was a "very popular R & B disco dance hit of the late 1970s" that received nationwide radio and dance club play and appeared for months on national industry and radio musical play charts. Id. ¶ 43. Family Records later executed an agreement with RSO Records Inc. ("RSO"), selling the rights of The Rock recording in exchange for royalties, as discussed below. Id. ¶ 23.
"Starlight": Before creating "Starlight" (the "Starlight composition"), Atlan contacted an unidentified individual in the United States (defendant "Doe 1") regarding The Rock composition and recording. Id. ¶ 42. Doe 1 gave Atlan purported authorization to use all or some of The Rock composition and recording to create the Starlight composition and the recording of that composition (the "Starlight recording"). Id. Doe 1, however, lacked authority to authorize use of The Rock composition or recording. Id.
In 2000, the Starlight defendants created the Starlight composition, which, Wallert claims, infringed The Rock composition. Id. ¶ 41. In January 2001, Lafesse, with other entities including Cyclo Records, recorded, manufactured, and distributed the Starlight recording, which was recorded by a group known as "The Superman Lovers featuring Mani Hoffman." Id. Atlan and Hoffman performed on the Starlight recording, and Atlan, who has stated that "R & B/Funk records are his number one influence," produced the composition. Id. ¶¶ 41, 43. The Starlight recording, a French House recording,5 allegedly infringed The Rock composition and recording. Id. ¶¶ 41, 43.
Since January 2001, the Starlight defendants have sold and/or distributed copies of the Starlight recording in various media (e.g., CDs, cassettes, DVDs, videocassettes, videos, digital downloads, and ringtones) directly and through licensed agents, and have licensed and continue to license the Starlight recording for further recording and public performance through performing rights organizations, such as BMI, the American Society of Composers, Authors and Publishers ("ASCAP"), and the Harry Fox Agency, Inc. ("HFA"). Id. ¶ 47.
Since January 2001, UMP France, and its predecessors in interest, have acted as publishers for the Starlight composition. Id ¶ 51. UMP France also has authorized and licensed the production, distribution, and sale of the Starlight recording, as well as the public performance of the Starlight composition, in France and elsewhere, and has received royalties and other revenue from such licensing. Id. ¶¶ 51–52. In the United States, Universal MGB was Universal France's licensed and authorized agent and administrator. Id. ¶¶ 51–52.
Also since January 2001, UMG has sold and/or distributed record compilations that included the Starlight recording. Id. ¶ 74.
Mango recording : In 2011, Giuseppe Mango, professionally known as Mango, a nonparty, recorded the Starlight composition on an album entitled, "La terra degli aquiloni" (the "Mango recording"). Id. 53. The Universal publishing defendants licensed the Starlight composition for the Mango recording, received royalties and other revenue from the Mango recording, and paid a share of those proceeds to the Starlight defendants. Id. ¶ 54. A karaoke version of the Mango recording also has been released, which has been a source of royalties and other revenue for the Starlight defendants and the Universal publishing defendants. Id.
"Hot Bitch" : In 2008, Beduk and possibly others created a musical composition entitled "Hot Bitch" (the "Hot Bitch composition"), which allegedly infringed The Rock composition. Id. ¶ 129. In 2008, Audiology, with Columbia Records ("Columbia"), a non-party in this case, recorded, manufactured, and distributed a sound recording by Beduk (the "Hot Bitch recording"), which allegedly infringed The Rock recording. Id. The Hot Bitch recording is included in an album entitled "Dance Revolution," released by Audiology and/or Columbia. Id.
On June 29, 1979, Family Records executed an agreement with RSO, selling the rights of The Rock recording in exchange for royalties (the "RSO agreement"). Id., Ex. B ("RSO Agreement"), at 38. Under the RSO agreement:
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