Wilchombe v. Teevee Toons, Inc.

Citation555 F.3d 949
Decision Date21 January 2009
Docket NumberNo. 07-13195.,07-13195.
PartiesRedwin WILCHOMBE, Plaintiff-Appellant Cross-Appellee, v. TEEVEE TOONS, INC., d.b.a. TVT Records, BME Records, LLC, Jonathan Smith, a.k.a. Lil Jon, Wendell Neal, a.k.a. Lil Bo, Sammie Norris, a.k.a. Big Sam, Defendants-Appellees Cross-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

James G. Edwards, II, W. Fred Orr, II, Orr & Edwards, Decatur, GA, Charles A. Mathis, Jr., The Mathis Firm, Phaedra C. Parks, The Parks Group, P.C., Atlanta, GA, for Wilchombe.

Michael Victor Coleman, Lord, Bissell & Brook, LLP, Atlanta, GA, for Defendants-Appellees Cross-Appellants.

Appeals from the United States District Court for the Northern District of Georgia.

Before BIRCH and FAY, Circuit Judges, and HINKLE,* District Judge.

BIRCH, Circuit Judge:

This is a copyright infringement case involving rap music. At issue is a song entitled "The Weedman," created by Plaintiff-Appellant Redwin Wilchcombe ("Wilchcombe"), and incorporated on an album entitled "Kings of Crunk" by Defendants-Appellees ("Appellees").1 The district court dismissed Wilchcombe's claim for breach of fiduciary duty pursuant to Federal Rule of Civil Procedure 12(b)(6) because his amended complaint did not allege a fiduciary or confidential relationship between himself and Appellees. The district court also granted summary judgment to Appellees on Wilchcombe's claim of copyright infringement and violation of the Lanham Act. Wilchcombe now appeals the district court's order dismissing his claim for breach of fiduciary duty and the court's order granting summary judgment on his claim of copyright infringement. Appellees filed a cross-appeal on grounds that the district court should have granted summary judgment on the copyright infringement claim for two additional reasons: (1) the copyright registration was invalid, and (2) Appellees were co-authors and/or licensees of co-authors of the song. After benefit of oral argument and a thorough review of the record, we AFFIRM the judgment of the district court.

I. BACKGROUND

Wilchcombe is a freelance musician and producer.2 In 2000, Rick Taylor ("Taylor") invited Wilchcombe to use a recording studio called Audio Vision Recordings ("Audio Vision"). Taylor acted as Wilchcombe's manager and permitted him to use the studio for free, in exchange for a share of any money received for Wilchcombe's work. In 2001, Taylor suggested that he and Wilchcombe create a production company called "Red Teamwerk." No written agreement was ever signed concerning this company but Wilchcombe has received credit under the "Teamwerk" name on at least one other album. He has also worked on several music engineering projects at Audio Vision with other artists without signed agreements or monetary compensation.

In May 2002, Wilchcombe met Appellees, Jonathan Smith ("Lil Jon"), Wendell Neal ("Lil Bo"), and Sammie Norris ("Big Sam"). Lil Jon is a popular music producer and performer who, along with Lil Bo and Big Sam, comprise a successful hip hop group called Lil Jon & the East Side Boyz ("LJESB"). Lil Jon owns in part a record company called BME Recordings, LLC ("BME"). Since 2001, BME has had a contract with TeeVee Toons, Inc. ("TVT"), the nation's largest independent record label, under which BME must exclusively give TVT all recordings by LJESB. Lil Jon also has had a contract with TVT since 2001, giving TVT exclusive rights to the songs authored and co-authored by Lil Jon.

Wilchcombe became friendly with the LJESB members, who were working in an adjacent studio at Audio Vision on their Kings of Crunk album. Lil Jon came up with the idea for a song about calling a "weedman" after someone suggested they call a supplier of marijuana or "weed." Wilchcombe was present at the time and sang a chorus and melody about calling a weedman. Lil Jon liked it and told Wilchcombe to make a song about it for the album. They discussed details of the song and Lil Jon told Wilchcombe it would be used as an interlude, or segue, between two different sides of the album.

During the composing and recording process, Lil Jon critiqued Wilchcombe's work and made suggestions. Wilchcombe eventually wrote and performed the lyrics for the song. Wilchcombe also wrote the background vocals which Kimberly Dennard sang. Additionally, Wilchcombe gave guitarist Craig Love ("Love") general direction on some guitar tracks for the song, although Love improvised various chords on his own. Love and Wilchcombe did not sign any agreement about the song. Pursuant to its contract with Love, BME owned all of Love's recorded performances for the album.

Wilchcombe performed the finished song live for Lil Jon, who liked it. LJESB completed their work at Audio Vision and a week later instructed Taylor to tell Wilchcombe to finish production of the song so that it could be added to the album. Wilchcombe did so and told Taylor that the song was ready for Lil Jon to do the final mixing before inclusion on the album. After receiving the disk from Taylor, LJESB added some vocal tracks they had composed. Lil Jon supervised the mixing session of the album at Audio Vision, during which Wilchcombe was briefly present. The final album included twenty-one recordings and was commercially released by TVT on 29 October 2002. As of January 2005, the album had sold two million copies. An insert in the CD lists the credits for the album's tracks and states "Produced by Red for Teamwerk" under "The Weedman" song. Wilchcombe is not personally named. "The Weedman" was not released as a single and has never appeared in a music video or been heard on the radio by any of the parties.

Wilchcombe testified in his deposition that he never discussed with anybody a contract or payment for the song prior to the album's release. Lil Jon assumed TVT and BME would get clearance or a license for the song to be used on the album. Lil Jon further assumed Wilchcombe would be paid for his work. Wilchcombe has received no monetary compensation for his contributions to the album.

In June 2004, Wilchcombe filed a claim of copyright for the song he called "Tha Weedman" based on the version of the song that appears on the album. In his registration application, Wilchcombe listed himself as the sole author. That same month, Wilchcombe initiated this lawsuit against Appellees. In his amended complaint, he alleged copyright infringement, violation of the Lanham Act, and breach of fiduciary duty. As one of their affirmative defenses, Appellees asserted they had an oral and/or an implied license to use the song.

Appellees filed a Rule 12(b)(6) motion to dismiss, which the district court granted in June 2006 as to the claim of breach of fiduciary duty. The court found that Wilchcombe failed to allege in his amended complaint any fiduciary or confidential relationship between himself and Appellees, nor any facts upon which such a relationship could be implied. Moreover, Wilchcombe did not state any basis for a fiduciary relationship until he filed his opposition to the motion to dismiss, in which he claimed that contracts between Lil Jon and TVT established a fiduciary relationship between Appellees and Wilchcombe. The court refused to consider these contracts, however, because the amended complaint never mentioned them. Because there was no factual basis to support Wilchcombe's conclusory allegations of a breach of fiduciary duty, the district court dismissed this claim.

Appellees also filed a motion for summary judgment, based in part on grounds that Wilchcombe had granted Appellees an oral and implied nonexclusive license to use the song for the album. In response, Wilchcombe only argued that he had never granted anyone a license to use his work. The district court disagreed. The court found that the parties' conduct established that Wilchcombe gave Appellees an implied nonexclusive license to use the song and that no genuine issue of material fact existed on that issue. Because such a license created an affirmative defense to a claim of copyright infringement, the district court granted summary judgment on that claim.

The district court noted that Appellees had raised two other grounds for summary judgment on the claim of copyright infringement — that Wilchcombe's copyright registration was invalid and that Appellees were co-authors, or licensees of co-authors, of the song. The court found there were genuine issues of material fact regarding these two arguments, but concluded that summary judgment remained appropriate based on the implied nonexclusive license. The district court also granted summary judgment on Wilchcombe's claim of a Lanham Act violation, which Wilchcombe does not appeal here.

Wilchcombe then filed a motion for reconsideration to set aside the grant of summary judgment or alter it so that his copyright infringement claim survived. Wilchcombe raised two new arguments in his motion for reconsideration. First, Wilchcombe argued that he had revoked the implied license when his attorney sent a letter to TVT 72 days after the album was released claiming copyright infringement. Second, Wilchcombe contended that even if Lil Jon had been granted an implied license, TVT had never been granted one. The district court rejected both arguments because they were "new arguments that plaintiff could and should have been made before the Court issued its judgment, and plaintiff has given no explanation as to why he failed to raise these arguments earlier." R9-234 at 6.

On appeal, Wilchcombe raises the same arguments he raised for the first time in his motion for reconsideration — that the implied license was revoked by his attorney's cease-and-desist letter and that TVT was never granted an implied license. Based on these arguments, Wilchcombe argues the district court erred in granting summary judgment on his claim of copyright infringement. In addition, Wilchcombe contends the district court erred in dismissing his claim of breach of fiduciary duty....

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