Scorpio Music S.A. et al v. Willis

Filing 22

REPLY - Other re 19 Order on Motion for Leave to File, 21 Reply - Other, in Support of Defendant's Motion to Dismiss filed by Songwriters' Guild of America. (Attachments: # 1 Exhibit A)(Chasin, Steven) (kaj).

1 Steven M. Chasin (SBN 228723)
BAKER & McKENZIE LLP
2 815 Connecticut Avenue, N.W.
Washington, D.C. 20006
3 Tel: [phone]
Fax: [phone]
4 [e-mail]
5 -and6 Carl W. Hampe
BAKER & McKENZIE LLP
7 815 Connecticut Avenue, NW
Washington, DC 20006-4078
8 Telephone: [phone]
Facsimile: [phone]
9 Email: [e-mail]
10 Charles J. Sanders
ATTORNEY AT LAW, PC
11 29 Kings Grant Way
Briarcliff Manor, NY 10510
12 Telephone: [phone]
Facsimile: [phone]
13 Email: [e-mail]
14 Attorneys for Amicus Curiae Songwriters Guild of America
15
UNITED STATES DISTRICT COURT
16
SOUTHERN DISTRICT OF CALIFORNIA
17
SCORPIO MUSIC (BLACK SCORPIO) S.A. and
18 CAN’T STOP PRODUCTIONS, INC.
19

Plaintiffs,

20 vs.

Case No. 3:11-CV-01557-BTM (RBB)
REPLY MEMORANDUM OF
AMICUS PARTY SONGWRITERS
GUILD OF AMERICA IN SUPPORT
OF DEFENDANT’S MOTION TO
DISMISS

21 VICTOR WILLIS
22

Defendant.

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Date: January 20, 2012
Time: 11:00 a.m.
Courtroom: 15 – Fifth Floor
Judge: Hon. Barry T. Moskowitz
ORAL ARGUMENT NOT
REQUESTED

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Reply Memorandum of Amicus

Case No. 3:11-CV-01557-BTM (RBB)

1

Amicus Party Songwriters Guild of America (“SGA”) replies herein to Plaintiffs’

2 opposition to the points that SGA respectfully requests this Court to consider. Plaintiffs’ most
3 recent memorandum prompts our recall of the words of the 40th President of the United States:
4 “well, there you go again.”
5 I.

PLAINTIFFS CONTINUE TO MISREAD THE COPYRIGHT ACT.

6

Plaintiffs continue to repeat their position over and again—contrary to the plain language

7 of the statute—that a “grant” of copyright in a musical work by one author of a joint work is
8 somehow synonymous with a joint grant by all authors of such joint work. The law is
9 emphatically not in accord with this line of argument, and Plaintiffs’ unsupported repetition, no
10 matter how frequently offered, will not change that.
11

Congress set forth with remarkable clarity: (i) the ability of copyrighted works to have

12 more than one author, 17 U.S.C. § 201(a); (ii) the ability of ownership of a copyright to be
13 transferred in whole or in part, 17 U.S.C. § 201(d)(1); and (iii) how “any of the exclusive rights
14 comprised in a copyright . . . may be transferred . . . and owned separately.” 17 U.S.C. §
15 201(d)(2). Indeed, Congress even elaborated on this critical final point to clarify that: “The
16 owner of any particular exclusive right is entitled, to the extent of that right, to all of the
17 protections and remedies accorded to the copyright owner by this title.” Id. The plain reading of
18 these provisions—Plaintiffs’ subterranean reasoning notwithstanding—is that a musical work
19 such as “Y.M.C.A.” may have more than one author, and that each such author has the ability to
20 transfer and terminate his or her rights separately and individually.
21

SGA’s interpretation of the statute is confirmed by the termination provisions in Section

22 203, where Congress recognized that a grant of copyright ownership may be terminated at the
23 appropriate time both “in the case of a grant executed by one author,” which is the case with Mr.
24 Willis, or “in the case of a grant executed by two or more authors of a joint work.” 17 U.S.C. §
25 203(a)(1). Plaintiffs do not assert, because factually they cannot, that Mr. Willis transferred his
26 interests to Plaintiffs in the same legal instrument as the other authors. Because of this fact, the
27 “majority of authors” language on which Plaintiffs hang their hat is simply irrelevant. Mr. Willis
28 transferred his interests in “Y.M.C.A.” and various other musical works by himself. Alone.
Reply Memorandum of Amicus

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Case No. 3:11-CV-01557-BTM (RBB)

1 Therefore, he is entitled, pursuant to Section 203(a)(1) and Section 201(d)(2), to terminate those
2 interests. Alone.
3

Plaintiffs assert that “[n]either Willis nor the SGA has offered any authority for the

4 proposition that the right of less than a majority of the authors to terminate would depend on the
5 fortuitous circumstance that all of the joint authors did not execute the same document when
6 creating the work.” Pl. Opp. Br. at 5 (emphasis added). This statement is meaningless, because
7 the critical document is not the one “creating” the work, but rather the one “transferring” the
8 work to Plaintiffs. And as just noted, both Willis and SGA previously offered the statutory
9 authority above—Section 201(d)(2)—to show that a work such as “Y.M.C.A.” can have more
10 than one author, and each such author may transfer his interests and receive the full protection of
11 the law with respect to such interests, including the right to terminate that transfer 35 years later.
12 II.

PLAINTIFFS MISCHARACTERIZE OWNERSHIP OF COPYRIGHT IN
POPULAR MUSICAL WORKS.

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14 Plaintiffs next decry the supposed “chaos” that would result from this Court’s endorsement of the
15 copyright-ownership regime set forth by Willis and SGA. Plaintiffs’ example of an adverse
16 result, however, is nonsensical:
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The chaos can only be imagined as each co-writer of a joint work
jockeys for position as being the one writer who could terminate
the grant of copyright ownership to a third party publisher, and
hence, administer the entire copyright on behalf of the other cowriters.

20 Pl. Opp. Br. at 5 (emphasis added). The scenario set forth by Plaintiffs is a legal null set. If
21 there were three writers of a musical work, and each writer transferred his or her copyright to a
22 publisher in a single grant, then at least two of the writers would have to elect to terminate the
23 publisher in order for the termination provisions in Section 203(a)(1) to be effective. The
24 scenario in this litigation, however, is the opposite. Mr. Willis transferred his copyright interests
25 alone, and was the only author in the particular grant now being noticed for termination. Mr.
26 Willis has no other authors to consult, because he was the sole grantor of his copyright interests
27 to Plaintiffs. The result, then, is that Mr. Willis will (it is to be hoped) be given permission to
28 reclaim his copyright interest from Plaintiffs. The remaining authors of the musical works such
Reply Memorandum of Amicus

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Case No. 3:11-CV-01557-BTM (RBB)

1 as “Y.M.C.A.” will remain subject to their earlier transfers of copyright to Plaintiffs, unless they
2 as well decide to terminate their separate interests. Until such additional terminations occur,
3 however, Plaintiffs would continue to be the copyright owners of the remaining musical work
4 copyrights in the musical works such as “Y.M.C.A.” at issue in this litigation.
5

SGA also reiterates that the purpose of the termination provision is not—as Plaintiffs

6 infer—to protect the authors of a joint work from one author “usurping” the rights of other
7 authors through the termination process. Such a result is avoided by the divisible nature of
8 copyright interests, as we describe above. Rather, the purpose of the termination provisions is to
9 protect authors from unremunerative transfers of copyright interests that they made earlier in
10 their careers, before the economic value of the works in question were fully understood.
11 Plaintiffs’ position here is completely inconsistent with this fundamental purpose of the
12 termination right.
13

The multiple ownership result may seem cumbersome, but it is the reality with the vast

14 majority of popular American musical works. To demonstrate this point, SGA attaches at
15 Exhibit A a recent listing of The Billboard Hot 100. This is a listing by Billboard Magazine of
16 the 100 most popular songs in its edition dated January 14, 2012. Each song on the list is
17 accompanied by the Artist, Producer, and Songwriter. There are multiple songwriters and
18 producers in most of the songs on this list. In addition, the alphabetical list of songs provides
19 further information, including the copyright owner (usually a music publisher) for each song on
20 the Hot 100. As is made obvious by this list in Exhibit A, all but 8 songs of the “Hot 100” have
21 more than one songwriter and more than one publisher or copyright owner.1 It is a simple fact
22 that the alleged “chaos” described by Plaintiffs is in fact simply the business norm in the popular
23 music community.
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1

For example, the song “Alone With You”—number 74 of the “Hot 100”—has ten copyright
owners (as shown in the alphabetical list of songs).
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Reply Memorandum of Amicus

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Case No. 3:11-CV-01557-BTM (RBB)

1 III.

CONCLUSION.

2

Plaintiffs are publishers of popular music. They are undoubtedly well aware of how

3 frequently more than one publisher and more than one songwriter own the copyright interests
4 that comprise a single musical work. For Plaintiffs to portray this complex reality as a scenario
5 that is uncommon—or as one that is to be avoided in order to preserve the marketplace from
6 chaos—is an argument best characterized as specious. It is in fact simply the way this particular
7 marketplace has always functioned under the law, and still does, to the benefit of individual
8 creators.
9

The Songwriters Guild of America thanks the Court for the opportunity to present this

10 information on the topic at issue in this litigation.
11 DATED: January 13, 2012

Respectfully Submitted,

12

BAKER & MCKENZIE LLP
/s/ Steven M. Chasin
STEVEN M. CHASIN

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14

Steven M. Chasin (SBN 228723)
BAKER & McKENZIE LLP
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Tel: [phone]
Fax: [phone]
[e-mail]

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-and19
Carl W. Hampe
BAKER & McKENZIE LLP
815 Connecticut Avenue, NW
Washington, DC 20006-4078
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Charles J. Sanders
ATTORNEY AT LAW, PC
29 Kings Grant Way
Briarcliff Manor, NY 10510
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Amicus Curiae Songwriters Guild
of America

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Reply Memorandum of Amicus

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Case No. 3:11-CV-01557-BTM (RBB)

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CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2012, I caused the foregoing to be electronically filed

3 with the Clerk of Court using the CM/ECF system which will send notification of such filing to the
4 email addresses denoted on the Electronic Mail Notice List, and that I caused the foregoing to be
5 mailed via FedEx to the non-CM/ECF participants indicated on the Manual Notice List.
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/s/ Steven M. Chasin
STEVEN M. CHASIN

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Steven M. Chasin (SBN 228723)
BAKER & McKENZIE LLP
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorney for Amicus Curiae
Songwriters Guild of America

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Reply Memorandum of Amicus

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Case No. 3:11-CV-01557-BTM (RBB)