Cole v. UMG Recordings, Inc et al
Filing
57
OPINION AND ORDER re: 50 MOTION to Dismiss the First Amended Complaint. filed by Blackwell Fuller Music Publishing LLC, Fifty Six Hope Road Music Ltd. For the foregoing reasons, Defendants' motion to dismiss, (Doc. 50), is GRANTED. The Clerk of Court is respectfully directed to enter judgment for Defendants and close this case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/28/2018) (rro) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------- X
:
ALLAN COLE,
:
:
Plaintiff,
:
:
- against :
:
:
BLACKWELL FULLER MUSIC
:
PUBLISHING, LLC and FIFTY-SIX HOPE :
ROAD MUSIC LTD.,
:
:
Defendants :
:
--------------------------------------------------------- X
9/28/2018
16-CV-7014 (VSB)
OPINION & ORDER
Appearances:
Warren R. Hamilton
Philadelphia, PA
Counsel for Plaintiff
Sandra A. Crawshaw-Sparks
David A. Munkittrick
Russell L. Kostelak
Proskauer Rose LLP
New York, NY
Counsel for Defendants
VERNON S. BRODERICK, United States District Judge:
Plaintiff Allan Cole (“Cole” or “Plaintiff”) brings this action against Defendants
Blackwell Fuller Music Publishing, LLC (“Blackwell”) and Fifty-Six Hope Road Music Ltd.
(“Hope Road”) (collectively, “Defendants”) asserting claims for copyright ownership, copyright
infringement, cancellation of registrations, issuance of new registrations, an accounting, and
fraud. Defendants move to dismiss Plaintiff’s Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Because I find that Plaintiff’s claims are time-barred, he is not entitled
to equitable tolling, and that even if he were, he has failed to state a claim as to each of his
claims, Defendants’ motion to dismiss is GRANTED.
Background1
Plaintiff was the road manager for the famous performing artist Bob Marley from 1973 to
1980. (Am. Compl. ¶ 16.)2 Plaintiff wrote the words and the music to the songs “War” and
“Natty Dread” (the “Compositions”) with Carlton Barnett and Rita Marley, respectively. (Id.
¶ 7.) The Compositions were recorded, performed, and made famous by Bob Marley. (Id.)
“Natty Dread” was registered for copyright with the U.S. Copyright Office in 1974, and “War”
was registered for copyright in 1976. (Id.) After they were copyrighted, the Compositions were
commercially released for sale in the record format. (Id. ¶ 8.)
At the time of copyright registration, Plaintiff was led to believe that Tuff Gong Music,
the publishing designee for Tuff Gong Records, was listing Plaintiff as an author on the
registration for the Compositions. (Id.) However, without Plaintiff’s knowledge, the copyright
registrations actually listed Tuff Gong Music as the author and represented that the copyrights
were “work for hire.” (Id. ¶ 9; Compl. Exs. A-1, A-2.)3 Plaintiff has never been employed by
Tuff Gong Music, and there is no agreement that assigns Plaintiff’s authorship rights to Tuff
Gong Music. (Am. Compl. ¶¶ 5, 13.) Tuff Gong Music is a predecessor-in-interest of
Defendants in this action. (Id. ¶ 5.) Defendants have an ownership interest in the copyrights at
issue in this litigation. (See id. ¶¶ 5, 26.)
1
The following factual summary is drawn from the allegations of the Amended Complaint, (Doc. 28), exhibits
attached to the Amended Complaint, (id.), and exhibits attached to the Original Complaint, (Doc. 1), unless
otherwise indicated, which I assume to be true for purposes of this motion. See Kassner v. 2nd Ave. Delicatessen
Inc., 496 F.3d 229, 237 (2d Cir. 2007). Although Plaintiff does not attach to the Amended Complaint the exhibits
attached to the Original Complaint, he does refer to them in the Amended Complaint. (Am. Compl. ¶¶ 7, 9, 11, 12,
13.) Therefore, those exhibits are incorporated by reference into the Amended Complaint. See Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). My references to these allegations and exhibits should not be
construed as a finding as to their veracity, and I make no such findings.
2
“Am. Compl.” refers to Plaintiff’s Amended Complaint, filed on February 20, 2017. (Doc. 28.)
3
“Compl.” refers to Plaintiff’s Original Complaint, filed on September 15, 2016. (Doc. 1.)
2
During the period that he served as Bob Marley’s road manager from 1973 to 1980,
Plaintiff was always acknowledged as the co-author of the Compositions. (Id. ¶ 16.) On
occasion, Plaintiff saw sheet music for the Compositions with his name listed as co-author. (Id.)
Plaintiff’s Complaint attaches two examples of sheet music for “War” and “Natty Dread,” which
list Plaintiff as a co-author, but name other entities as the copyright owners. (Compl. Exs. B-1,
B-2.) In addition, Plaintiff has been told by family members that there are articles on the internet
that acknowledge him as a co-author of the Compositions. (Am. Compl. ¶ 18.)
On certain unspecified dates, Plaintiff “made numerous inquiries” to Defendants and their
predecessors-in-interest with respect to the status of his copyright royalties for the Compositions.
(Id. ¶¶ 15, 20.) On each occasion, he was told they would consider his inquiries, but did not
inform Plaintiff that the Compositions were registered as a “work for hire.” (Id. ¶ 20.) In 2002,
Plaintiff began receiving royalty statements from the American Society of Composers Authors
and Publishers (“ASCAP”) for “Natty Dread,” even though he had never joined ASCAP. (Id.
¶ 21.)
Plaintiff attaches to the Amended Complaint a series of emails from July 2014 through
September 2015 between and among himself, Christopher Blackwell—owner of Blackwell—and
individuals at ASCAP. (Id. ¶¶ 22–25, Ex. C.) The correspondence primarily relates to
Plaintiff’s attempts to understand why he had received such small amounts of royalty payments
from ASCAP in relation to the Compositions, as well as other works. (See id. Ex. C.) Plaintiff
alleges that Mr. Blackwell “had to know” that Plaintiff was not listed as an author on the
copyright registration “because [Mr. Blackwell] was not paying mechanical royalties to any
publishing company plaintiff was affiliated with nor [did] he suggest to [P]laintiff he should
contact a publishing company.” (Id. ¶¶ 26, 29.) Rather, Mr. Blackwell only discussed the
3
ASCAP royalty streams with Plaintiff because he knew those were the only royalties of which
Plaintiff was aware. (Id. ¶ 27.) In addition, Plaintiff alleges that Defendants must have become
aware of the fact that Plaintiff was not listed as an author on the copyright registrations when
Defendants acquired their respective publishing interests in the Compositions. (Id. ¶ 30.)
In May 2016, Plaintiff decided to assign half of his interest in “War” to the family of
Emperor Haile Selassie of Ethiopia. (Id. ¶ 10.) Only after retaining legal counsel to assist him in
preparing the copyright assignment did Plaintiff learn that he was not listed as an owner or
author on the copyright registrations. (Id. ¶ 11.)
Procedural History
Plaintiff filed his Complaint and accompanying exhibits on September 15, 2016, bringing
claims against UMG Recordings, Inc., Island Records, Inc., and Tuff Gong Music. (Doc. 1.) On
January 19, 2017, I held a pre-motion conference to discuss UMG Recordings, Inc.’s anticipated
motion to dismiss, or in the alternative, motion for summary judgment. (See Docs. 22, 25, 26.)
At the pre-motion conference, counsel for Plaintiff sought leave to amend the complaint to
substitute parties and add factual allegations, which I granted at the conference. (Doc. 26.) On
February 20, 2017, Plaintiff filed his Amended Complaint, with attached exhibits, naming
Defendants Blackwell and Hope Road. (Doc. 28.)
The parties proposed a briefing schedule for Defendants’ anticipated motion to dismiss
the Amended Complaint on May 23, 2017. (Doc. 48.) I approved the parties’ briefing schedule
on May 24, 2017, (Doc. 49), and Defendants filed their motion to dismiss, (Doc. 50), a
memorandum of law in support, (Doc. 51), and the declaration of David A. Munkittrick, (Doc.
52), on June 22, 2017. Plaintiff filed his opposition on July 20, 2017, (Doc. 55), and Defendants
filed their Reply on August 10, 2017, (Doc. 56).
4
Legal Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim will 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.” Id. This standard demands “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations:
the full factual picture presented by the complaint, the particular cause of action and its elements,
and the existence of alternative explanations so obvious that they render plaintiff’s inferences
unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
In considering a motion to dismiss, a court must accept as true all well-pleaded facts
alleged in the complaint and must draw all reasonable inferences in the plaintiff’s favor. Kassner
v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make
“detailed factual allegations,” but it must contain more than mere “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). Although all allegations contained in the complaint are assumed to be
true, this tenet is “inapplicable to legal conclusions.” Id. Finally, a complaint is “deemed to
include any written instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference.” Chambers, 282 F.3d at 152 (internal quotation marks omitted).
5
Discussion
Defendants move to dismiss Plaintiff’s claims on the grounds that they are time-barred,
and, in the alternative, that Plaintiff fails to state a claim as to each of his claims. (See Defs.’
Mem. 5–16; Defs.’ Reply 2–10.)4 Plaintiff counters that his failure to file his claims in a timely
manner should be excused under the doctrine of equitable tolling, and that his claims accrued
when he first became aware that the copyrights were not registered in his name in May 2016, but
he does not respond to Defendants’ arguments that the Amended Complaint fails to state a claim.
(Pl.’s Opp. 4–10.)5
A.
Statute of Limitations6
1. Applicable Law
When copyright ownership is at the center of the dispute between the parties, the relevant
statute of limitations inquiry relates to the claim of ownership. Ortiz v. Guitian Bros. Music Inc.,
No. 07 Civ. 3897, 2008 WL 4449314, at *3 (S.D.N.Y. Sept. 29, 2008) (“Where . . . a plaintiff’s
copyright ownership is not conceded . . . copyright ownership, and not infringement, is the
gravamen of the plaintiff’s claim to which the statute of limitations is applied.”); Minder Music
Ltd. v. Mellow Smoke Music Co., No. 98 Civ. 4496(AGS), 1999 WL 820575, at *2 (S.D.N.Y.
Oct. 14, 1999) (“Although plaintiff attempts to portray its claim as one for an ongoing
infringement, it has been established that the statute of limitations cannot be defeated by
4
“Defs.’ Mem.” refers to the Memorandum of Law in Support of Defendants’ Motion to Dismiss, filed on June 22,
2017. (Doc. 51.) “Defs.’ Reply” refers to the Reply Memorandum of Law in Support of Defendants’ Motion to
Dismiss, filed on August 10, 2017. (Doc. 56.)
5
“Pl.’s Opp.” refers to Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss, filed on
July 20, 2017. (Doc. 55.)
6
Although a statute of limitations defense is an affirmative defense that a defendant must plead, Fed. R. Civ. P.
8(c)(1), a defendant may raise it in a pre-answer motion to dismiss under Rule 12(b)(6) when “the defense appears
on the face of the complaint.” Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008).
6
portraying an action as one for infringement when copyright ownership rights are the true matter
at issue.”); see also Weissmann v. Freeman, 868 F.2d 1313, 1318 (2d Cir. 1989) (holding that
“an action for infringement between joint owners will not lie because an individual cannot
infringe his own copyright”).
The statute of limitations for claims brought under the Copyright Act is three years from
the date on which the claim accrued. 17 U.S.C. § 507(b). A claim for copyright ownership
accrues “when a plaintiff knows or has reason to know of the injury upon which the claim is
premised.” Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996); Ortiz, 2008 WL 4449314, at *3.
“An 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)
(internal quotation marks omitted). “[A]ny number of events can trigger the accrual of an
ownership claim, including an express assertion of sole authorship or ownership.” Id. A claim
can also accrue “when alleged co-owners learn they are entitled to royalties that they are not
receiving.” Gary Friedrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302, 317 (2d Cir.
2013).
In certain “extraordinary circumstances,” a court may excuse a plaintiff’s failure to
comply with the applicable statute of limitations under the doctrines of equitable estoppel or
equitable tolling. Netzer v. Continuity Graphic Assocs., Inc., 963 F. Supp. 1308, 1316 (S.D.N.Y.
1997). Equitable estoppel may apply where the plaintiff knew of his cause of action, but
misconduct on the part of the defendant caused him to delay in bringing suit. Buttry v. Gen.
Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995). To invoke the doctrine, “a plaintiff must show
that: (1) the defendant made a definite misrepresentation of fact, and had reason to believe that
the plaintiff would rely on it; and (2) the plaintiff reasonably relied on that misrepresentation to
7
his detriment.” Id. The defendant’s misconduct must amount to “egregious wrongdoing.”
Netzer, 963 F. Supp. at 1316.
“Under the equitable tolling doctrine . . . a statute of limitations does not run against a
plaintiff who was justifiably ignorant of his cause of action.” Id.; see Cerbone v. Int’l Ladies’
Garment Workers’ Union, 768 F.2d 45, 48 (2d Cir. 1985) (“The essence of the doctrine is that a
statute of limitations does not run against a plaintiff who is unaware of his cause of action.”
(internal quotation marks omitted)). The doctrine permits the tolling of the limitations period
until “the plaintiff either acquires actual knowledge of the facts that comprise his cause of action
or should have acquired such knowledge through the exercise of reasonable diligence after being
apprised of sufficient facts to put him on notice.” Cerbone, 768 F.2d at 48 (citation omitted). A
plaintiff’s lack of diligence is detrimental to his reliance on either doctrine. Netzer, 963 F. Supp.
at 1316.
A plaintiff may invoke either doctrine under a theory of fraudulent concealment. Id.
(“Fraudulent concealment on the part of the defendant is one ground for invoking equitable
estoppel.”); Cooper v. Sony Records Int’l, a Div. of Sony Music Entm’t, Inc., No. 00 CIV.
233(RMB), 2001 WL 1223492, at *3 (S.D.N.Y. Oct. 15, 2001) (holding that plaintiff may
invoke doctrine of equitable tolling by fraudulent concealment). A plaintiff relying on the
doctrine of equitable tolling by fraudulent concealment must plead three elements: “(1)
wrongful concealment by the defendant, (2) which prevented the plaintiff’s discovery of the
nature of the claim within the limitations period, and (3) due diligence in pursuing discovery of
the claim.” Antonios A. Alevizopoulos & Assocs., Inc. v. Comcast Int’l Holdings, Inc., 100 F.
Supp. 2d 178, 183 (S.D.N.Y. 2000) (citing In re Merrill Lynch Ltd. Partnerships Litig., 154 F.3d
56, 60 (2d Cir. 1998)). In addition, a plaintiff must “allege facts which give rise to a strong
8
inference” of the defendant’s fraudulent intent. Cooper, 2001 WL 1223492, at *3. A plaintiff’s
allegations with respect to fraudulent concealment are subject to the heightened pleading
standard of Federal Rule of Civil Procedure 9(b). Id.; see also Fed. R. Civ. P. 9(b).
2. Application
Although Plaintiff frames his claim as one of copyright infringement, Defendants do not
concede Plaintiff’s copyright ownership. (Defs.’ Mem. 5–6.) Since Defendants do not concede
that Plaintiff is owner of copyrights with regard to “Natty Dread” and “War,” the relevant statute
of limitations inquiry relates to the claim of ownership. See Ortiz, 2008 WL 4449314, at *3;
Minder Music, 1999 WL 820575, at *2.
a. Date of Accrual
Defendants argue that Plaintiff’s ownership claims accrued at one of the following: (1) in
1974 and 1976, when the copyright registrations for “Natty Dread” and “War” were filed with
the Copyright Office, respectively, (Defs.’ Mem. 7–8); (2) in the 1970s or 1980s, when Plaintiff
failed to receive royalties with respect to the Compositions, despite their widespread distribution
and exploitation, (id. at 8–10); or, at the latest, (3) in 2002, when Plaintiff first received royalty
statements with respect to “Natty Dread,” (id. at 10–11). I find that Plaintiff was on notice of his
claims at least as of the time he failed to receive royalties, despite the widespread distribution
and exploitation of the Compositions, which results in his claims being time-barred.
Plaintiff alleges that the copyrights were registered with the Copyright Office in 1974 and
1976. (Am. Compl. ¶¶ 7–8.) The registrations identified the names of the Compositions as
“Natty Dread” and “War,” and they identified the owners and authors as Tuff Gong Music,
Defendants’ alleged predecessor-in-interest. (Compl. Exs. A-1, A-2.) Plaintiff was not listed as
an owner or author on either registration. (Id.)
9
While copyright registration, on its own, is “not an effective repudiation” sufficient to
provide “reasonable notice” to a copyright ownership claimant, Wilson v. Dynatone Publ’g Co.,
892 F.3d 112, 119 (2d Cir. 2018), when considered together with Plaintiff’s failure to receive
royalties, despite the widespread distribution and exploitation of the Compositions, Plaintiff was
on notice of his claims at least as of the 1970s or 1980s. The Compositions were commercially
released following registration of the copyrights, (Am. Compl. ¶ 8), and they were performed
and made famous by Bob Marley during that time, (id. ¶ 7). Plaintiff was Bob Marley’s road
manager between 1973 and 1980, “during which time, [Plaintiff] was always acknowledged as
the co-author of the [C]ompositions.” (Id. ¶ 16). This indicates that he had actual knowledge of
the commercial exploitation of the Compositions, or, at a minimum, raises the reasonable
inference that Plaintiff knew of the commercial exploitation of the Compositions.7 In addition,
Plaintiff “has on occasion seen sheet music of the subject compositions,” (id. ¶ 17), including
documents he attached as exhibits to his Complaint, which clearly indicate that he is not a
copyright owner, (Compl. Exs. B-1, B-2). Plaintiff received no royalties until 2002, when he
began receiving royalty statements from ASCAP for the writer’s share of public performance
income from the exploitation of “Natty Dread.” (See Am. Compl. ¶¶ 21, 27–28.) The fact that
Plaintiff was not receiving royalties, despite the public distribution and exploitation of the
Compositions in the 1970s and 1980s (and presumably in the decades since, leading up to the
present), of which Plaintiff was aware, put him on notice of his claims. Mahan v. Roc Nation,
LLC, No. 14 CIV. 5075 LGS, 2015 WL 1782095, at *4 (S.D.N.Y. Apr. 15, 2015) (holding that
“the absence of any royalties sent to Plaintiff . . . gave him reason to know of his injury” where
7
Plaintiff concedes in his Opposition that he “was aware of the wide distribution and exploitation of the
compositions.” (Pl.’s Opp. 8.) This is not surprising since, as Bob Marley’s road manager from 1973 to 1980,
Plaintiff no doubt traveled with Marley and witnessed him perform the Compositions.
10
the works were a commercial success), aff’d, 634 F. App’x 329 (2d Cir. 2016); Ortiz, 2008 WL
4449314, at *3–4 (holding that “[p]ublic distribution of the work at issue bearing copyright
notices . . . which exclude the plaintiff . . . create[s] sufficient notice to begin the running of the
statute of limitations” and that “Defendants’ open distribution and exploitation of the [work]
without paying any royalties to [plaintiff] should have put [plaintiff] on notice that Defendants
rejected [plaintiff’s] claim to copyright”); Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236, 249
(S.D.N.Y. 2000) (holding that “non-payment of royalties should have put [plaintiff] on notice of”
repudiation of plaintiff’s ownership rights).8
At the latest, the limitations period with respect to “Natty Dread” began when Plaintiff
received royalty statements from ASCAP in 2002 with respect to that work. Plaintiff never
joined ASCAP, (Am. Compl. ¶ 21), and he states that he did not know why he began receiving
royalty statements from them, (Pl.’s Opp. 10). This put Plaintiff on notice that he might be
entitled to royalties for the nearly three decades preceding his initial receipt of payments in 2002
for Natty Dread.9 See Mahan, 2015 WL 1782095, at *4 (“The limitations period begins to run
when ‘alleged co-owners learn they are entitled to royalties that they are not receiving.’”
(quoting Gary Friedrich, 716 F.3d at 317)). There are no allegations that detract from this
8
Plaintiff alleges that he “made numerous inquiries to various representatives of [Defendants] concerning royalty
statements and payments for the subject compositions.” (Am. Compl. ¶ 20.) While Plaintiff does not specify when
these inquiries occurred, his Opposition suggests they might have occurred at or around the time he received the
ASCAP royalty statements in 2002. (Pl.’s Opp. 10 (stating that Plaintiff felt “that he was finally making some
progress” after receiving the statements and that he “was assured by Defendant Blackwell that he would continue to
work towards a resolution of the matter”).) Plaintiff essentially argues that he got the proverbial “run around” when
he made such inquiries but he apparently took no additional steps to ferret out the truth. In addition, if Plaintiff
made such inquiries at any point prior to three years before the commencement of this action—a reasonable
inference to make in light of the circumstances—they would provide further support for the conclusion that Plaintiff
was on notice of his claims.
9
Defendants do not cite any cases holding that knowledge of an ownership claim for one work may trigger the
statute of limitations for an ownership claim in another work. Nevertheless, without holding that Plaintiff’s receipt
of royalty payments for Natty Dread in 2002 triggered the statute of limitation for Plaintiff’s ownership claim in
War, it is plausible that Plaintiff was put on notice that he was not receiving all the royalty payments to which he
was entitled when he began receiving royalty payments for Natty Dread.
11
finding, or that might explain why Plaintiff did not look-up and check the registrations himself.
Because Plaintiff’s claims accrued at the earliest during the 1970s after the copyrights for
the Compositions were publicly registered and while they were being publicly distributed and
exploited, and at the latest in 2002, when Plaintiff began receiving royalty statements for “Natty
Dread,” Plaintiff’s copyright ownership claims are time-barred. In addition, because Plaintiff’s
ownership claims are the basis for his remaining claims—copyright infringement, cancellation of
copyright registrations, issuance of new registrations, and an accounting—those claims are also
time-barred. Merchant, 92 F.3d at 56 (holding that “plaintiffs claiming to be co-authors are
time-barred three years after accrual of their claim from seeking a declaration of copyright coownership rights and any remedies that would flow from such declaration”); Kwan, 634 F.3d at
230 (“Where, as here, the ownership claim is time-barred, and ownership is the dispositive issue,
any attendant infringement claims must fail.”); Dodson v. JRL Music, Inc., 684 F. App’x 7, 8 (2d
Cir. 2017) (summary order), cert. denied, 138 S. Ct. 170, 199 L. Ed. 2d 41 (2017) (holding that,
where plaintiff’s ownership claim was untimely, her state law claims for, among other things, an
accounting, were also untimely).
b. Equitable Tolling
Plaintiff does not appear to contest that his claims accrued long before he commenced
this action. Rather, he argues that the doctrines of equitable tolling and/or equitable estoppel
apply to render his claims timely. It is not clear, based on Plaintiff’s opposition, which doctrine
Plaintiff argues should apply at which times during the relevant period. However, the Amended
Complaint alleges that Plaintiff believed he held a copyright in the Compositions at least until
May 2016 when he attempted to assign his rights, (Am. Compl. ¶ 10), implying that he was
ignorant of his claim until that time. As such, I interpret Plaintiff’s argument as one in support of
12
equitable tolling rather than equitable estoppel. Cerbone, 768 F.2d at 49–50 (holding that
“equitable estoppel is invoked in cases where the plaintiff knew of the existence of his cause of
action,” whereas equitable tolling “is invoked in cases where the plaintiff is ignorant of his cause
of action”).
As an initial matter, Plaintiff was aware that the copyrights were being registered in 1974
and 1976. (Am. Compl. ¶¶ 7–8.) Plaintiff alleges that although he was aware the copyrights
were being registered, he “was led to believe that the [C]ompositions were being copyrighted for
him as an author by . . . Tuff Gong Music,” (Am. Compl. ¶ 8), but in fact, the copyright
registrations listed Tuff Gong Music as the author and represented that the copyrights were
“work[s] for hire,” (id. ¶ 9; Compl. Exs. A-1, A-2). These allegations are pled with particularity
and are thus sufficient to meet the first element of fraudulent concealment, the wrongful
concealment by defendant.
However, Plaintiff fails to satisfy the second element—concealment which prevented his
discovery of the nature of the claim within the limitations period—and the third element—his
due diligence in pursuing discovery of the claims. The initial misrepresentation regarding the
copyright registrations did not plausibly “prevent[] the plaintiff’s discovery of the nature of the
claim within the limitations period.” Antonios A. Alevizopoulos & Assocs., Inc., 100 F. Supp. 2d
at 183. Plaintiff fails to allege any misrepresentations during the 1970s, 1980s, 1990s, or
2000s—a period in which Plaintiff witnessed the performance of the Compositions and was
aware of the commercial distribution and exploitation of the Compositions—that would have
prevented him from looking up the registrations himself and discovering his claims. See Netzer,
963 F. Supp. at 1317 (“The running of a limitations period will be tolled only so long as the
condition giving rise to the tolling persists.”) Plaintiff also fails to make specific allegations
13
describing his due diligence during that period. He alleges that he “made numerous inquiries to
various representatives of [D]efendant[s] . . . concerning royalty statements and payments,” (Am.
Compl. ¶ 20), but he does not allege when he made those inquiries, or how many inquiries he
made. When Defendants responded to Plaintiff stating that they “would consider” his inquiries,
(id.), Plaintiff does not allege that he asked to review the registration documents or inquired who
was identified as the author on those documents, Price v. Fox Entm’t Grp., Inc., 473 F. Supp. 2d
446, 459 (S.D.N.Y. 2007) (finding plaintiff failed to meet due diligence prong when he failed to
establish that he asked to review registration documents). Plaintiff does attach several emails to
his Amended Complaint between him and Mr. Blackwell from 2014 and 2015, but even if those
were sufficient to establish additional misrepresentations and/or Plaintiff’s due diligence, they
were exchanged approximately forty years after the copyrights were registered.
Plaintiff contends that even though he knew of the widespread distribution and
exploitation of the Compositions, he believed that his rights were protected, that he would be
“treated fairly,” and that “he would eventually be paid as a co-author.” (Pl.’s Opp. 8.) He
further argues that although he “did not know exactly how he would be paid for his work,” he
“believed that he would be paid because he could see . . . his name was associated as co-author
of ‘War’ and ‘Natty Dread.’ He did not believe he had to do anything other than make his
request to be paid to the owner of the record/publishing company.”10 (Id.) These facts are
plainly insufficient to demonstrate due diligence. See Price, 473 F. Supp. 2d at 459 (holding that
plaintiff’s assertion that he “trusted” co-author to protect his rights was insufficient to establish
equitable tolling). Therefore, I decline to equitably toll the statute of limitations on Plaintiff’s
10
Apart from allegations that he occasionally saw his name printed as a co-author of the Compositions on sheet
music, articles, and the internet, (Am. Compl. ¶¶ 17–19), Plaintiff raises these facts for the first time in his
Opposition.
14
claims and conclude that they are time-barred.
B.
Failure to State a Claim
Defendants argue that even if I were to find that Plaintiff’s claims were timely, I should
still dismiss them for failure to state a claim. (Defs.’ Mem. 12–16.) Plaintiff fails to address any
of Defendants’ arguments on these grounds in his Opposition brief. Numerous courts have held
that a plaintiff’s failure to address an issue in its opposition raised by its adversary amounts to a
concession or waiver of the argument. See, e.g., AT&T Corp. v. Syniverse Techs., Inc., No. 12
Civ. 1812(NRB), 2014 WL 4412392, at *7 (S.D.N.Y. Sept. 8, 2014) (holding that the plaintiff’s
failure to address an issue in its opposition brief “concedes the point”); W. Bulk Carriers KS v.
Centauri Shipping Ltd., No. 11 Civ. 5952(RJS), 2013 WL 1385212, at *3 (S.D.N.Y. Mar. 11,
2013) (holding that plaintiff conceded issue of subject matter jurisdiction by failing to address it
in its opposition brief); In re UBS AG Sec. Litig., No. 07 Civ. 11225(RJS), 2012 WL 4471265, at
*11 (S.D.N.Y. Sept. 28, 2012) (holding that plaintiff conceded issue through silence in
opposition brief), aff’d sub nom. City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG,
752 F.3d 173 (2d Cir. 2014). As such, Plaintiff’s silence in his opposition concedes Defendants’
arguments concerning the Amended Complaint’s failure to state a claim, and Plaintiff’s claims
are thus dismissed for that additional reason. See AT&T Corp., 2014 WL 4412392, at *7
(concluding that plaintiff’s “silence [in its opposition] concedes the point”).
15
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss, (Doc. 50), is GRANTED. The
Clerk of Court is respectfully directed to enter judgment for Defendants and close this case.
SO ORDERED.
Dated: September 28, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge
16
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