Wilson v. Perrell et al.
OPINION & ORDER re: 68 MOTION to Dismiss with prejudice all claims of Plaintiffs John Wilson, Charles Still and Terrance Stubbs against defendants and the cross-claim of Defendant Edward Perrell against UMG, and for any other and further re lief the Court deems equitable filed by UniChappell Music, Inc., Dynatone Publishing Company, UMG Recordings, Inc. For the foregoing reasons, the Court grants defendants' motion to dismiss the AC and Perrell's Cross-Claim. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 68, and to close this case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 4/10/2017) (anc)
relief is to enable them to obtain royalties from these works, which, in 2013, were sampled in
two popular hit songs, Justin Timberlake’s “Suit & Tie” and J. Cole’s “Chaining Day.”
Defendants Dynatone Publishing Company (“Dynatone”), UMG Recordings, Inc.
(“UMG”), and Unichappell Music, Inc. (“Unichappell”) now move to dismiss all such claims.
Defendants argue that plaintiffs’ claims as alleged in the Amended Complaint (“AC”) are barred
by the three-year statute of limitations for copyright actions; and that the accounting claims fail
to state a claim both because they are time-barred and because the AC does not allege a fiduciary
relationship between plaintiffs and defendants.
For the following reasons, the Court grants the motion to dismiss.
Plaintiffs were the members of the musical group “Sly, Slick & Wicked,” which wrote
and performed music in the 1970s. AC ¶¶ 13–15, 26. Around early 1973, Wilson wrote the
musical composition “Sho’ Nuff (You Really Love Him)” (“Sho’ Nuff”) while traveling with
Sly, Slick & Wicked and inspired by his recent break up with his wife. Id. ¶ 33.
The Court’s summary of the facts is drawn from the AC and its attached exhibits, which are
incorporated by reference in the AC, and from Perrell’s Cross-Claim, Dkt. 40 (“Cross-Claim”).
For the purpose of resolving the motion to dismiss, the Court assumes all well-pleaded facts to
be true and draws all reasonable inferences in favor of the plaintiff. See Koch v. Christie’s Int’l
PLC, 699 F.3d 141, 145 (2d Cir. 2012). The Court also draws from the exhibits attached to the
Declaration of Robert A. Jacobs in Support of Defendants’ Motion to Dismiss, Dkt. 70 (“Jacobs
Decl.”). These materials are cognizable on the instant motion to dismiss because they are either
incorporated by reference in the AC or are “integral” to the AC. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (“Even where a document is not incorporated by
reference, the court may nevertheless consider it where the complaint relies heavily upon its
terms and effect, which renders the document integral to the complaint.” (internal quotation
marks and citation omitted)). In deciding a motion to dismiss, a court may consider, as included
in the complaint, “documents that the plaintiffs either possessed or knew about upon and upon
which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88–89 (2d Cir. 2000)
Around this time, Perrell was a music promoter based in New York City who wanted to
help Sly, Slick & Wicked obtain a new recording agreement. Id. ¶¶ 29, 32. Perrell liked “Sho’
Nuff” and, at his suggestion, plaintiffs recorded “Sho’ Nuff” in April 1973 at Studio 88 on 8th
Avenue in Manhattan. Id. ¶¶ 34–35. Perrell later played that recording for representatives of
James Brown’s record label, People Records. Id. ¶¶ 36–39. Perrell and Brown then modified
the “Sho’ Nuff” recording by adding strings and bells. Id. ¶ 40.
The recording: As to the “Sho’ Nuff” recording, around June 28, 1973, People Records
commercially released a “single” record of it, which featured Sly, Slick & Wicked’s song
“Ready For You” on the record’s B side (the “1973 Recording”). Id. ¶¶ 41, 48. The credits on
the label for the 1973 Recording list Perrell and James Brown as producers of “Sho’ Nuff,” id.
¶ 43; Sly, Slick & Wicked—with plaintiffs’ names listed—is also listed on the label, Jacobs
Decl., Ex. 1. The label also states that the record distributor was Polydor Incorporated
(“Polydor”), and includes, on its face, the words: “℗ 1973 Polydor Incorporated.” Id.2 Polydor
was successor-in-interest to People Records and predecessor-in-interest to UMG. AC ¶¶ 23, 60.
Around this time, plaintiffs, as Sly, Slick & Wicked, performed “Sho’ Nuff” on the television
show, “Soul Train.” Id. ¶ 42.
On or about June 26, 1973, Polydor registered a copyright in the “Sho’ Nuff” recording,
having acquired ownership rights in People Records’s ownership interest in the recording. Id.
¶¶ 60–61 & Ex. D. In the registration, Polydor claimed to be sole owner of the recording, which
it termed a work made for hire. Id. ¶ 62. Plaintiffs allege, however, that the “Sho’ Nuff”
The symbol, ℗ (the letter P in a circle), is a component of a copyright notice for phonorecords
of sound recordings, as provided by the Copyright Act. See 17 U.S.C. § 402(b) (“Form of
Notice.—If a notice [of copyright] appears on the phonorecords, it shall consist of the following
three elements: (1) the symbol ℗ (the letter P in a circle); and (2) the year of first publication of
the sound recording; and (3) the name of the owner of copyright in the sound recording. . . .”).
recording was not a work for hire for Polydor, because (1) it had been created before Sly, Slick
& Wicked had met with representatives from People Records, and (2) no written agreement
created a work for hire relationship between Sly, Slick & Wicked and People Records. Id.
¶¶ 65–66. Plaintiffs further claim that they are co-owners, with Perrell and UMG (as successorin-interest to Polydor, which in turn was successor-in-interest to UMG), of the recording. Id.
¶¶ 69–72. But, plaintiffs allege, they have never received any remuneration from Perrell or
UMG for the recording, or any accounting in connection with earnings from it; and that Perrell
and UMG intentionally failed to give plaintiffs an accounting of the earnings from the recording.
On December 21, 2001, UMG obtained a renewal registration for the renewal term rights in the
recording. Jacobs Decl., Ex. 4.
The composition: As to the “Sho’ Nuff” composition, on or around May 12, 1973,
plaintiffs registered their claim to the copyright for that composition with the United States
Copyright Office. Id. ¶ 45 & Ex. A. The copyright registration listed Wilson, Still, and Stubbs
as authors of the composition. Id. In addition, on or about July 9, 1973, Perrell registered the
composition with Broadcast Music Inc. (“BMI”), listing Perrell Music, Belinda Music, and
Dynatone as publishers. Id. ¶ 50. Perrell Music, Belinda Music, and Dynatone were listed as
receiving the entire publisher’s share from the composition. Jacobs Decl., Ex. 2. The credits on
the record label of the 1973 Release include “Dynatone Pub. Co./Perrell Music/Belinda Music
(BMI)” as the publishers. Id., Ex. 1.
On June 26, 1974, Chappell & Co., Inc., predecessor-in-interest to defendant
Unichappell, id. ¶ 20, registered a copyright on the “Sho’ Nuff” composition, listing plaintiffs as
the authors and Dynatone Publishing Company as the sole claimant. Id. ¶ 49 & Ex. B.3
Plaintiffs allege, however, that they never executed a written agreement with People Records,
Dynatone, or Belinda Music that transferred any interest in the renewal term of the copyright of
the composition. Id. ¶ 51. And, they allege, Perrell and Dynatone “have been collecting the
music publisher’s share of performance income for ‘Sho’ Nuff’ since 1973,” and Perrell never
provided them with any accountings of royalties. Id. ¶¶ 52–53. Plaintiffs also allege that, “after
this dispute arose,” Unichappell gave plaintiffs an accounting of royalties for the period of 1992–
2013. Id. ¶ 56. Finally, on November 19, 2015, several weeks before initiating this action,
plaintiffs filed, “as evidence of their sole ownership of the renewal copyright,” a copyright
registration for the renewal term rights in the “Sho’ Nuff” composition. Id. ¶ 58 & Ex. C.
Perrell is a musician, producer, songwriter, and performer in the record industry. CrossClaim ¶ 117. He alleges that, in 1973, after producing, with James Brown, various recordings
made by plaintiffs as “Sly, Slick & Wicked,” plaintiffs entered into a written agreement with
James Brown’s People Records, which provided for plaintiffs to record exclusively for People
Records, and which also assigned and transferred all copyright interests—including plaintiffs’—
to People Records. Id. ¶ 119. Perrell was credited as a co-producer on the 1973 Recording of
“Sho’ Nuff” and Perrell’s music publishing company was credited as a co-publisher of the “Sho’
Nuff” composition. Id. ¶ 120. And, as a co-publisher of the “Sho’ Nuff” composition, Perrell
alleges, he registered the composition with BMI. Id. ¶ 121. Perrell alleges that UMG never gave
him with an accounting or royalties from UMG in connection with the recording. Id. ¶ 126. He
Plaintiffs claim, however, and ask the Court to declare, that the June 26, 1974 registration by
Dynatone is invalid. Id. ¶ 78.
seeks an accounting of any royalties paid as a result of UMG’s alleged sampling of the “Sho’
Nuff” recording in Justin Timberlake’s “Suit & Tie” and J. Cole’s “Chaining Day.” Id. ¶¶ 127–
On January 6, 2016, plaintiffs Wilson and Still filed a complaint. Dkt. 1. They sued
defendants, plus Perrell, BMI, and Anheuser-Busch Companies, Inc. After various extensions of
time for defendants to respond, on July 22, 2016, Perrell filed an answer and his Cross-Claim,
Dkt. 40, and, on August 1, 2016, defendants Dynatone, UMG, and Unichappell filed a motion to
dismiss under Rule 12(b)(6). Dkts. 42–44.
On August 22, 2017, plaintiffs Wilson, Still, and Terrance Stubbs filed the AC. Dkt. 52.
The AC, like the initial complaint, named Perrell, Dynatone, Unichappell, UMG, and BMI as
defendants, id.; on August 3, 2016, plaintiffs entered a stipulation of dismissal with prejudice of
their claims against Anheuser-Busch, Dkt. 51. On September 12, 2016, the Court entered an
order of discontinuance for plaintiffs’ claims against BMI, Dkt. 66, having been notified, on
September 9, 2016, by the parties that plaintiffs and BMI had reached a settlement in principle,
Dkt. 65. On October 11, 2017, the Court signed a stipulation of voluntary dismissal, with
prejudice, of plaintiffs’ claims against BMI. Dkt. 76.
On September 14, 2016, defendants Dynatone, Unichappell, and UMG filed the instant
motion to dismiss the AC and the Cross-Claim, Dkt. 68, and a memorandum of law in support,
Dkt. 69, and the Jacobs Decl., Dkt. 70. On September 23, 2016, the Court entered an order of
discontinuance for plaintiffs’ claims against Perrell, Dkt. 72, having been notified, on September
22, 2016, by the parties that plaintiffs and Perrell had reached a settlement in principle, Dkt. 71.
On October 6–7, 2016, Perrell and plaintiffs, respectively, each filed a memorandum of law in
opposition to defendants’ motion. Dkts. 73 (“Perrell Opp.”) and 74 (“Plaintiffs’ Opp.”). On
October 17, 2017, defendants filed a reply. Dkt. 77.
Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim will only have “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly
dismissed where, as a matter of law, “the allegations in a complaint, however true, could not
raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558.
In considering a motion to dismiss, a district court must “accept all factual claims in the
complaint as true, and draw all reasonable inferences in the plaintiff’s favor.” Lotes Co. v. Hon
Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting Famous Horse Inc. v. 5th
Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010)) (internal quotation marks omitted). However,
“the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[R]ather,
the complaint’s factual allegations must be enough to raise a right to relief above the speculative
level, i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110,
120 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 555, 570) (internal quotation marks, citation,
and alteration omitted) (emphasis in Arista Records).
A statute of limitations defense may be cognizable on a Rule 12(b)(6) motion to dismiss.
Like other affirmative defenses, a defendant must plead and prove the lapse of a statute of
limitations period. Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008)
(citing Fed. R. Civ. P. 8(c)(1)). But, as with other affirmative defense, a defendant may raise a
statute of limitations defense in a pre-answer motion to dismiss under Rule 12(b)(6) if the
allegations in the complaint are such that “the defense appears on the face of the complaint.” Id.
Plaintiffs bring two claims for declaratory judgments for copyright ownership and two
claims for accountings of profits.
The ownership claims are for the “Sho’ Nuff” composition, brought against Dynatone
and Unichappell, AC ¶¶ 76–79, and for the “Sho’ Nuff” recording, against UMG, id. ¶¶ 84–88.
The accounting claims are, from Dynatone and Unichappell for all amounts collected from use of
the composition, id. ¶¶ 80–83; and, from UMG, for all amounts collected from the use of the
recording, id. ¶¶ 89–92, both for the three years preceding this lawsuit. Perrell’s Cross-Claim
against UMG seeks an accounting and payment of all royalties. Cross-Claim ¶¶ 130–132.
Defendants move to dismiss under Rule 12(b)(6) for failure to state a claim, on the
grounds that plaintiffs’ ownership claims are untimely and that the accounting claims are both
untimely and defective for failure to allege that a fiduciary relationship between plaintiffs and
For the following reasons, the Court grants the motion to dismiss.
Plaintiffs’ Copyright Ownership Claims
Civil lawsuits brought under the Copyright Act must be brought “within three years after
the claim accrued.” 17 U.S.C. § 507(b). A copyright ownership claim “accrues only once, when
‘a reasonably diligent plaintiff would have been put on inquiry as to the existence of a right.’”
Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir. 2011) (quoting Stone v. Williams, 970 F.2d 1043,
1048 (2d Cir. 1992)); see also Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996) (copyright
ownership cause of action “accrues when a plaintiff knows or has reason to know of the injury
upon which the claim is premised”). While “an alleged author is aware of his claim to ownership
of the work from the moment of its creation, the author does not need to bring suit until there has
been an express repudiation of that claim.” Gary Freidrich Enters., LLC v. Marvel Characters,
Inc., 716 F.3d 302, 317 (2d Cir. 2013) (quotations omitted). “[A]ny number of events can trigger
the accrual of an ownership claim, including an express assertion of sole authorship or
ownership.” Kwan, 634 F.3d at 228 (quotation omitted); see also Gary Freidrich Enters., 716
F.3d at 317 (“For example, a claim can accrue . . . when alleged co-owners learn they are entitled
to royalties they are not receiving.”).
“Failure to sue within the three-year period requires dismissal of a claim of copyright
ownership and ‘any rights or remedies’ that would flow from such a claim.” Margo v. Weiss,
No. 96 Civ. 3482 (MBM), 1998 WL 2558, at *5 (S.D.N.Y. Jan. 5, 1998) (quoting Merchant, 92
F.3d at 56). This time limitation “promotes the principles of repose integral to a properly
functioning copyright market.” Merchant, 92 F.3d at 56–57; see also Cmty. for Creative NonViolence v. Reid, 490 U.S. 730, 749 (1989) (“Congress’ paramount goal” in the Copyright Act
was of “enhancing predictability and certainty of copyright ownership”).
These principles foreclose plaintiffs’ copyright ownership claims.
First, as to the “Sho’ Nuff” recording, for which plaintiffs assert a claim against UMG,
plaintiffs’ allegations and the cognizable materials demonstrate that plaintiffs knew or had reason
to know that UMG or Polydor, its predecessor-in-interest, asserted copyright ownership over the
“Sho’ Nuff” recording starting in 1973. As defendants note, the label on the 1973 Release
indicates that Polydor holds a copyright over the “Sho’ Nuff” recording, as the notice on that
label, “℗ 1973 Polydor Incorporated,” complies with the statutory requirements for providing
notice of a copyright for a sound recording. See 17 U.S.C. § 402(b)–(c); Jacobs Decl., Ex. 1.
And Polydor asserted sole copyright ownership rights over the “Sho’ Nuff” recording when it, on
June 28, 1973, registered a copyright in the “Sho’ Nuff” recording. AC ¶¶ 60–62 & Ex. D.
Plaintiffs also allege that they received no remuneration from UMG or Polydor for the “Sho’
Nuff” recording. Id. ¶ 69. This state of affairs persisted past the start of the renewal term in
2001, 28 years after the first copyright in 1973. Indeed, UMG continued to assert its exclusive
ownership over the “Sho’ Nuff” recording by registering a renewal term copyright for it on
December 21, 2001, see Jacobs Decl., Ex. 4.
Second, as to the “Sho’ Nuff” composition, Unichappell and Dynatone asserted
ownership of the composition starting in 1973, and at least by June 26, 1974, when they
registered a copyright for that composition and listed Dynatone as the claimant. AC ¶ 49 & Ex.
B. Further, the credits on the record label of the 1973 Release list Dynatone, Perrell Music, and
Belinda Music (BMI) as publishers of the record. Jacobs Decl., Ex. 1. Perrell and Dynatone
collected the entire musical publisher’s share of performance income from “Sho’ Nuff” since in
1973; consistent with defendants’ claim of ownership to the exclusion of plaintiffs, Perrell never
provided plaintiffs with any accountings of royalties. AC ¶¶ 52–53. This state of affairs, too,
was continuous, and continued past the commencement of the renewal term in 2001. Indeed, not
until “[a]fter this dispute arose” did Unichappell make an accounting of royalties to plaintiffs for
the period of 1992 to 2013. Id. ¶ 56. And not until November 19, 2015 did plaintiffs file a
renewal registration to assert their ownership of the renewal term copyright of the “Sho’ Nuff”
composition. Id. ¶ 58 & Ex. C.
In light of these facts, plaintiffs’ copyright ownership claims for the “Sho’ Nuff”
recording and composition accrued in 1973 or 1974, and, as to the renewal term, accrued in
2001. In a variety ways, catalogued above, defendants asserted copyright ownership over the
recording and the composition starting in 1973 and/or 1974. Their conduct put plaintiffs amply
on notice decades ago of their claims to own those copyrights. And defendants’ conduct in the
ensuing decades continued to put plaintiffs on notice, including into the renewal term of the
recording and composition that began in 2001.
Plaintiffs therefore have long been on notice that defendants have claimed copyright
ownership in the recording and composition and that defendants rejected any claim of interest by
plaintiffs. Whether by defendants’ “express assertion of sole authorship or ownership,” Kwan,
634 F.3d at 228 (quotation omitted), or by their not paying royalties to plaintiffs, plaintiffs were
placed “on inquiry as to the existence of a right,” Stone, 970 F.2d at 1048; see Gary Freidrich
Enters., 716 F.3d at 317 (“a claim can accrue . . . when alleged co-owners learn they are entitled
to royalties they are not receiving”). Plaintiffs’ causes of action for copyright ownership thus
accrued by 1974 and, for the renewal term, in 2001. Because civil actions under the Copyright
Act must be brought “‘within three years after the claim has accrued,’” Kwan, 634 F.3d at 228
(quoting 17 U.S.C. § 507(b)), plaintiffs’ 2016 lawsuit is quite untimely.
Plaintiffs’ attempt to salvage their claim is unpersuasive. They claim now to base their
copyright claims solely on their renewal rights, which they argue vested in them by operation of
law insofar as the Copyright Act vests such rights in the copyright owner for the duration of the
renewal term. They further argue that their right to sue continued to refresh itself during the
renewal term, so that any time bar would cover only infringements more than three years prior to
the date of suit. That theory is incorrect as a matter of law. The Copyright Act clearly provides
that a civil lawsuit must be brought “within three years after the claim accrued,” 17 U.S.C.
§ 507(b), and as the Second Circuit explained in Kwan, “[a]n ownership claim accrues only
once,” Kwan, 634 F.3d at 228. Plaintiffs here fell years short of bringing this suit within three
years of the accrual of the renewal rights. Nor may a plaintiff “revive the time-barred claim of
ownership of a copyright interest by relying on defendants’ continued exploitation of the
copyright within three years of [a plaintiff] filing suit.” Simmons v. Stanberry, 810 F.3d 114,
116 (2d Cir. 2016) (per curiam); see also Tomas v. Gillespie, 385 F. Supp. 2d 240, 246
(S.D.N.Y. 2005) (holding time-barred a plaintiff’s seeking of “a declaration of ownership in
renewal copyrights well after the three-year limitations period has expired”).
The cases plaintiffs cite are not to the contrary. For example, plaintiffs cite Stone for the
proposition that, when a plaintiff did not promptly seek relief for violations of its copyright
ownership rights, it may still sue. Plaintiffs’ Opp. at 8. But Stone rested on “highly idiosyncratic
facts,” such that its holding has been limited to “the narrow proposition that, in certain situations,
the statute of limitations will not be applied to defeat the copyright co-ownership claim of an
author’s relative accruing more than three years before the lawsuit where uncertainty surrounded
the relative’s status as a member of the author’s family.” Merchant, 92 F.3d at 56. That
proposition has no bearing here.
Similarly, plaintiffs cite Stewart v. Abend, 495 U.S. 207, 217 (1990), for the proposition
that an author’s claim to renewal term copyright rights is not subject to the Copyright Act’s
statute of limitations. Plaintiffs’ Opp. at 1. Stewart held nothing of the sort. Its holding relates
to the rights of an assignee of a copyright holder’s renewal term rights in the circumstance where
the copyright holder dies before the start of the renewal period. Stewart held, inter alia, that if
the author dies before the renewal period, the assignee may continue to use the work only if the
author’s successor then transfers the renewal rights to the assignee, because, as to the renewal
rights, the assignee holds only an unfulfilled expectancy. Stewart, 495 U.S. at 220–21. That fact
pattern and holding, too, are inapposite.
Finally, plaintiffs cite Rose v. Bourne, Inc., 176 F. Supp. 605, 610 (S.D.N.Y. 1959), for
the proposition that a filing of a copyright registration for a renewal term renews a previously
registered copyright right but does not determine the actual ownership of the renewal term
copyright. Plaintiffs Opp. at 10. Rose indeed notes that “[i]t is true that the copyright was
renewed by virtue of the registration of the application but the ownership of the copyright as
renewed was not determined thereby.” Rose, 176 F. Supp. at 610. But, contrary to plaintiffs’
claim, see Plaintiffs’ Opp at 10, this principle does not defeat UMG’s ownership of the renewal
term copyright in the “Sho’ Nuff” recording by virtue of UMG’s December 21, 2001 copyright
renewal registration for it, Jacobs Decl., Ex. 4. It does not speak to the operation of the statute of
limitations. The relevant—and scarcely disputed—point is that plaintiffs’ claims for copyright
ownership accrued by 1974 or, as to the renewal rights, in 2001 when plaintiffs were put on
inquiry as to the existence of their ownership rights. A lawsuit for those ownership rights filed in
2016 is, therefore, untimely.
Accordingly, the Court grants defendants’ motion to dismiss plaintiffs’ copyright
ownership claims as barred by the Copyright Act’s three-year statute of limitations.
Plaintiffs’ and Perrell’s Accounting Claims
Plaintiffs bring claims for accounting of profits against UMG for the “Sho’ Nuff”
recording, AC ¶¶ 89–92, and against Dynatone and Unichappell for the “Sho’ Nuff”
composition, id. ¶¶ 80–83, and Perrell brings a cross-claim against UMG for the recording,
Cross-Claim ¶¶ 130–32.
Under New York law, a claim for an accounting of profits, an equitable remedy, requires
that the plaintiff establish that he or she is entitled to an accounting. That, in turn, requires a
showing—and in the context of a pleading, plausible allegations—of a fiduciary relationship
between the plaintiff and defendant and of the defendant’s breach of that fiduciary duty. See
Palazzo v. Palazzo, 121 A.D.2d 261, 264 (N.Y. App. Div. 1st Dept. 1986) (“The right to an
accounting is premised upon the existence of a confidential or fiduciary relationship and a breach
of the duty imposed by that relationship respecting property in which the party seeking the
accounting has an interest.”); see also Kosowsky v. Willard Mountain, Inc., 90 A.D.3d 1127,
1132 (N.Y. App. Div. 3d Dept. 2011) (a “cause of action seeking an accounting require[s]
‘factual allegations or evidence of a fiduciary relationship’ between plaintiffs and defendants”
(quoting Village of Hoosick Falls v. Allard, 249 A.D.2d 876, 879 (N.Y. App. Div. 3d Dept.
1998) (internal modification omitted)); MacCartney v. O’Dell, No. 14 Civ. 3925 (NSR), 2016
WL 815279, at *5 (S.D.N.Y. Feb. 29, 2016) (same).
Defendants move to dismiss plaintiffs’ and Perrell’s accounting claims on two grounds:
because the AC fails to allege the existence of a fiduciary relationship and because, like the
copyright ownership claims, these claims are time-barred. Defendants are correct on both scores.
As to Perrell, his Cross-Claim is devoid of factual allegations of a fiduciary relationship
between him and UMG. Indeed, in his opposition to the motion to dismiss, Perrell acknowledges
that no fiduciary relationship existed or exists between him and UMG. He states instead that the
relationship between him and UMG is “of a contractual nature.” Perrell Opp. at 1. But such a
relationship will not do; as noted, a fiduciary relationship between the plaintiff and the defendant
is a necessary element of an accounting of profits cause of action under New York law.
As to plaintiffs, they, too, fail to allege the existence of a fiduciary relationship between
themselves and defendants. Instead, they argue that they have asserted a “prima facie claim for
an accounting” because they claim to be, with UMG, co-owners of the “Sho’ Nuff” recording,
and to be owners of the “Sho’ Nuff” composition. Plaintiffs’ Opp. at 12–13. But there is no
fiduciary relationship between a music publisher and a composer as a matter of law—and the
fact that a party is responsible for collecting and passing on royalties does not create a fiduciary
relationship. Rios v. Cartagena, No. 14 Civ. 7583 (GBD), 2015 WL 4470433, at *7 (S.D.N.Y.
July 9, 2015) (collecting cases; citations omitted). Plaintiffs’ accounting claims thus founder on
the fiduciary duty element.
Separately, insofar as plaintiffs’ accounting claims ostensibly flow from their alleged
status as co-owners of the renewal term copyrights in the recording and composition, these
claims are time-barred. “[P]laintiffs claiming to be co-authors are time barred three years after
accrual of their claim from seeking a declaration of copyright co-ownership rights and any
remedies that would flow from such a declaration.” Merchant, 92 F.3d at 56 (emphasis added);
see also Dodson v. JRL Music, Inc., --- F. App’x ---, No. 16-3087, 2017 WL 1103465, at *1 (2d
Cir. Mar. 22, 2017) (summary order) (holding plaintiff’s copyright ownership claims untimely,
which, “[b]y extension,” made plaintiff’s state-law claim for accounting “also untimely” (citing
Merchant, 92 F.3d at 56)). Because plaintiffs’ state-law claims for accounting derive from their
claim of copyright ownership, they, too, are time-barred.
The Court therefore grants defendants’ motion to dismiss plaintiffs’ and Perrell’s claims
for accounting of profits brought under New York law.
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