Montgomery v. Jones et al

Filing 39

MEMORANDUM Signed by District Judge Aleta A. Trauger on 1/18/2019. (xc: Pro se party by e-mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 1/18/2019 (dt).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
EARL “PEANUTT” MONTGOMERY,
Plaintiff,
v.
NANCY JONES, CONCORD BICYCLE
ASSETS, LLC, CONCORD MUSIC
GROUP, INC., d/b/a ROUNDER
RECORDS, and CRACKER BARREL
OLD COUNTRY STORE, INC.,
Defendants.

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Case No. 3:18-cv-284
Judge Aleta A. Trauger

MEMORANDUM
Nancy Jones, Concord Bicycle Assets, LLC (“Concord”), Concord Music Group d/b/a
Rounder Records (“Rounder”), and Cracker Barrel Old Country Store, Inc. (“Cracker Barrel”)
have filed a Motion to Dismiss (Docket No. 14), to which Earl “Peanutt” Montgomery has filed a
Response (Docket No. 27), and the defendants have filed a Reply (Docket No. 29). For the
reasons set out herein, the defendants’ motion will be granted in part and denied in part.
I. BACKGROUND AND PROCEDURAL HISTORY 1
Montgomery is a songwriter, musician, and producer. He was an original member of the
“Fame Gang,” a group of studio musicians credited with creating the “Muscle Shoals sound.”
For the majority of the 1960s and 70s, Montgomery was a “friend, band-member, co-writer,
confidante, [and] running buddy” of the now-deceased singer George Jones. Montgomery
composed seventy-three songs that have been recorded by Jones, thirty-eight of which were
released to radio stations as singles. (Docket No. 1 ¶¶ 8–10.)
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The facts set out herein are taken from Montgomery’s Complaint (Docket No. 1) and are taken as true
for the purposes of the Motion to Dismiss.

In the late 1970s, Jones and Montgomery both found themselves in moments of
transition. Jones was “between recording contracts,” meaning that he had the right to record new
music without its rights immediately reverting to a record label. Montgomery, for his part, was
apparently reaching the end of the time in which his professional life would be so thoroughly
structured around Jones. Jones proposed that, as a “retirement package” to Montgomery,
Montgomery would serve as the producer of a new album recorded by Jones with the Smoky
Mountain Boys, the backing band for musician Roy Acuff, and Montgomery would have
ownership of the recording “to do with as he wished.” (Id. ¶ 11.)
Around 1978 or 1979, Montgomery, Jones, and the Smoky Mountain Boys recorded the
album, consisting of twelve tracks, in Hendersonville, Tennessee. Montgomery retained a copy
of the original mixed version of the album, but the 2” master tapes of the recording were left in a
vault at the recording studio—which, Montgomery states, was the custom at the time.
Unfortunately for Montgomery, Jones, shortly thereafter, re-signed with CBS Records, bringing
into question whether any other person or entity had a right to release new music by Jones or
under Jones’ name, even with Jones’ personal approval. The album went unreleased. (Id. ¶¶ 12–
14.)
In 1981, Montgomery contacted Jones’s record label about the possibility of
Montgomery’s using Jones’s name and likeness to release the George Jones/Smoky Mountain
Boys album. The label declined to grant permission for the release. (Id. ¶ 17.) That same year,
George Jones met his eventual wife, Nancy Jones, one of the defendants in this case.
Montgomery blames Nancy Jones for George Jones’s growing estranged from many of his
previous friends and associates, including Montgomery. (Id. ¶ 16.)

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In the 1990s, Montgomery tried again to find a path toward releasing the album. He met
with MCA Records Nashville President Tony Brown and Chairman Bruce Hinton, and they
began discussing the contours of a deal that would have allowed MCA to release the album, with
Montgomery receiving $30,000 and the right to additional payment from sales based on his
producer credit. Nancy Jones, however, got word of the proposed deal and intervened with
Brown to prevent it from going forward. Again, the George Jones/Smoky Mountain Boys album
went unreleased. (Id. ¶ 17.)
In the mid-2000s, Nancy Jones contacted Montgomery about the album. She stated that
she and George would allow Montgomery to release the album, if Montgomery paid the Joneses
$100,000. Montgomery declined, on the ground that Nancy Jones’s proposal was, in his view,
inconsistent with the initial decision by George Jones to give Montgomery ownership of the
album in recognition of their years of work together. (Id. ¶¶ 20–21.)
In 2013, George Jones died. Somewhere along the line, a man named Joey Burks had
inherited, from his father, the recording studio that had retained a copy of the master tapes of the
George Jones/Smokey Mountain Boys album. Burks had no knowledge of Jones’s understanding
with Montgomery and merely believed that he had had the good fortune to come into possession
of unreleased material recorded by the now-deceased George Jones. He contacted Nancy Jones
in an attempt to sell her the master for $10,000. Nancy Jones threatened to sue Burks and
eventually paid him $1,000 for the tape—giving her, finally, possession of a physical copy of her
deceased husband’s unreleased recording with the Smoky Mountain Boys. (Id. ¶¶ 22–25.)
Eventually, Nancy Jones sold all of her George Jones-related assets—including masters
and intellectual property, as well as rights to Mr. Jones’s name and likeness—to defendant
Concord, for a sum reported to be in excess of $30 million. Attorneys for Concord and

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Rounder—a Concord affiliate—contacted Montgomery about Rounder’s potentially releasing the
album. Pursuant to the companies’ proposal, Montgomery would have received a producer credit
and the right to some payments for sales, but he would not have been directly compensated for
his claimed ownership of the album. Montgomery rejected the offer. (Id. ¶ 27.)
Rounder released a version of the album anyway. With the original master recordings in
its possession, Rounder was able to add instrumentation, remix the track, and release the album
for sale to the public—which it did in partnership with Cracker Barrel, as a release available for
purchase only at Cracker Barrel locations. The released album does not credit Montgomery as a
producer, instead listing Concord/Rounder executives as “Executive Producer” and “Project
Supervisor.” The packaging of the album represents it as a “lost” album that was later
discovered. (Id. ¶¶ 28–31.)
On March 14, 2018, Montgomery filed his Complaint in this case, relying on the court’s
diversity jurisdiction. (Docket No. 1.) The Complaint alleges that the defendants variously
committed the torts of conversion, trespass to chattels, and false light invasion of privacy. (Id. ¶¶
40–43.) Montgomery does not specifically allege copyright infringement. (Id.) On May 8, 2018,
the defendants moved to dismiss Montgomery’s claims. (Docket No. 14.)
II. LEGAL STANDARD
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
Federal Rules of Civil Procedure require only that the plaintiff provide “a short and plain
statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and

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the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must
determine only whether “the claimant is entitled to offer evidence to support the claims,” not
whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the
plaintiff must plead “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, 678–79
(2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. at 679; Twombly, 550 U.S. at 556.
III. ANALYSIS
A. Conversion and Trespass to Chattels
Montgomery argues that Nancy Jones’s receipt of the George Jones/Smoky Mountain
Boys master tapes from Burks and the corporate defendants’ later receipt of the masters from
Jones amount to trespass to chattels and/or conversion. He explicitly denies that he is alleging
either claim in reference to his intangible rights in the recorded material itself, relying instead
solely on his claimed ownership of the physical masters. (Docket No. 28 at 4.) He also concedes
that he has not pled a claim for copyright infringement based on the release of the George
Jones/Smoky Mountain Boys album. (Id. at 3–4.) The only issue before the court, then, is
whether he has pled claims on which relief could be granted with regard to the master tapes as

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physical objects. The defendants argue that those claims are preempted, would fail on the merits,
and are barred by the doctrine of laches.
1. Preemption
Under § 301(a) of the Copyright Act, a state law claim is preempted if “(1) the work is
within the scope of the ‘subject matter of copyright,’ as specified in 17 U.S.C. §§ 102, 103 . . .
and (2) the rights granted under state law are equivalent to any exclusive rights within the scope
of federal copyright as set out in 17 U.S.C. § 106.” Wrench LLC v. Taco Bell Corp., 256 F.3d
446, 453 (6th Cir. 2001) (quoting 17 U.S.C. § 301(a)). “Courts and commentators have described
this preemption analysis as encompassing a ‘subject matter requirement’ and a ‘general scope’ or
‘equivalency’ requirement.” Id. (citing Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841,
848 (2d Cir. 1997); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §
1.01[B][1]–[2], at 1-10 to 1-57 (1999)).
The subject matter requirement of § 301 is satisfied if a work fits within the general
subject matter of §§ 102 and 103, regardless of whether it qualifies for copyright protection.
Stromback v. New Line Cinema, 384 F.3d 283, 300 (6th Cir. 2004) (citations omitted).
Nevertheless, even if a party’s “state law claims concern works within the subject matter of
copyright, such claims will only be preempted if they assert rights that are ‘equivalent to any of
the exclusive rights within the general scope of copyright as specified by section 106[.]’”
Wrench, 256 F. 3d at 455–56 (quoting 17 U.S.C. § 301(a)). The court applies a “functional test”
to determine whether the state law right at issue is equivalent to any of the exclusive rights under
§ 106. Stromback, 384 F.3d at 301 (citing Data Gen. Corp. v. Grumman Sys. Support Corp., 36
F.3d 1147, 1164 (1st Cir. 1994)). “Equivalency exists if the right defined by state law may be
abridged by an act which in and of itself would infringe one of the exclusive rights.” Id. at 456.

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If, however, “an extra element is required instead of or in addition to the acts of reproduction,
performance, distribution or display in order to constitute a state-created cause of action, there is
no preemption, provided that the extra element changes the nature of the action so that it is
qualitatively different from a copyright infringement claim.” Id. (emphasis added) (citations
omitted). The existence of an extra element precludes preemption only where the element
changes the nature, rather than the scope, of the action. Data Gen., 36 F.3d at 1164–65.
If Montgomery had asserted state-law torts based solely on the defendants’ sale and
release of the George Jones/Smoky Mountain Boys recorded material, there would be little doubt
that those claims would be pre-empted by federal copyright law. Indeed, much of what
Montgomery describes looks like an ordinary copyright dispute. A work was authored, and, over
the years, questions about its ownership arose. Eventually, one party started exploiting the work
despite another’s claim of ownership. If Montgomery had sued to establish his right to royalties
from the recorded material or his right to release versions of the album in the future, such a suit
would plainly fall within the subject matter of copyright and involve functionally equivalent
rights, giving rise to preemption.
Montgomery, though, stresses that he bases his claims entirely on his alleged ownership
of the master tapes and the defendants’ improper possession and use of those tapes. It is well
settled that copyright law recognizes a distinction between a copyright-protected work and the
“physical embodiment” of that work, with the subject matter of copyright encompassing only the
former. SecureInfo Corp. v. Telos Corp., 387 F. Supp. 2d 593, 620 (E.D. Va. 2005).
Accordingly, the “torts of conversion and trespass are generally not preempted by copyright law
because they relate to . . . tangible rather than intangible property.” Id. (citations omitted).
Physical copies of original manuscripts—which may have collectible or historical value distinct

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from the underlying material—are paradigmatic examples of the types of physical property for
which a conversion claim may exist outside the scope of copyright law. 1 Melville B. Nimmer &
David Nimmer, Nimmer on Copyright § 1.15[I][1] (2018) (“[A] manuscript is subject to
wrongful conversion, whereas a poem (or other literary work) is subject to copyright
infringement.” (emphasis in original)). The same reasoning applies to master tapes. See Eagle
Rock Entm’t, Inc. v. Coming Home Prods., Inc., No. CV 03-00571 FMC (AJWx), 2003 WL
25781234, at *3 n.3 (C.D. Cal. Dec. 12, 2003) (“The owner of the Master Tapes would likely
have a conversion claim to recover the actual, physical Master Tapes.”).
The defendants argue that Montgomery is merely limiting his allegations to the master
tapes “for the sole purpose of defeating a prong of the preemption test” and that his argument,
therefore, is “illusory.” (Docket No. 29 at 2.) There is nothing illusory, though, about the wellsettled, foundational premise that a physical copy of a work remains the subject of ordinary
property law, while copyright law governs the work. Montgomery’s choice to limit the subject
matter of his litigation, moreover, is not just some cosmetic trick. By limiting his claims to the
physical master tapes and forswearing any copyright claim, Montgomery has given up quite a
bit. He has lost the ability to rely on the Copyright Act’s theories of liability or damages. He has
lost the right to try to establish, at least in this proceeding, that he has a right to release the album
himself. In other words, if Montgomery’s theory of recovery was an attempt to smuggle a
copyright claim into this case, it did not work. That does not affect the viability of the claims that
he has pleaded. Montgomery is the master of his own Complaint and he is entitled to assert
whichever rights he wishes to assert. He has asserted tangible property rights in specific physical
tapes, and the Copyright Act does not preempt such claims.
2. Conversion and Trespass to Chattels Regarding Tangible vs. Intangible Property

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The defendants argue next that the court should dismiss these claims because Tennessee
does not recognize causes of action for trespass to chattels or conversion based on intangible
property. See, e.g., Ralph v. Pipkin, 183 S.W.3d 362, 368 (Tenn. Ct. App. 2005) (“[I]n
Tennessee, a civil action for conversion, the wrongful appropriation of tangible property, is not
recognized for the appropriation of intangible personal property.”) (citing B & L Corp. v.
Thomas & Thorngren, Inc., 917 S.W.2d 674, 680 (Tenn. Ct. App. 1995)). Again, though,
Montgomery’s own concessions leave the defendants’ arguments beside the point. He concedes
that he is not relying on any violation of his intangible rights, only on the allegedly unlawful
handling of the master tapes that he left with the recording studio but continued to own. (Docket
No. 28 at 5.)
The defendants identify no basis, under Tennessee law, for concluding that an otherwise
valid claim for conversion or trespass to chattels would fail merely because the relevant piece of
tangible property is also the physical embodiment of a piece of intangible property. Indeed, such
a rule would be difficult to justify and lead to results that Tennessee courts, this court imagines,
would be unlikely to endorse. For example, under such a rule, one person would be unable to sue
another for stealing a book, a painting—or maybe even a computer, since the computer would be
full of copyright-protected software. The court does not believe that the Tennessee Supreme
Court, if asked, would recognize such a senseless exception to the ordinary rules of property
torts. Montgomery’s claims, therefore, do not fail merely because the master tapes are physical
property that embodies intangible property.
The defendants next suggest that, insofar as Montgomery’s claims are based solely on his
rights in the master tapes as physical objects, he cannot establish damages, because the only
meaningful value of the tapes was in the recordings themselves. The defendants argue, without

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citation to law, that, even if Montgomery had retained possession of the tapes, the defendants
“presumably” could have “taken appropriate legal measures” to force him to allow them to
access and use the recordings to release the album, without payment to him. (Docket No. 29 at
5.) They do not describe what those appropriate legal measures would be or why Concord and
Rounder would have the right to force Montgomery to grant them access to property that he
lawfully owned and that he was not using in any way that infringed on any copyright.
Moreover, the argument that the tapes are worthless is belied by the fact that so many
people appear to have felt differently. At least as the facts have been alleged by Montgomery,
MCA Records executives felt it was appropriate to pay Montgomery at least $30,000, not
adjusted for inflation, in order to release the album—a strange position to take if Montgomery’s
rights were worthless. Joey Burks tried to sell the tapes for $10,000, and, while Nancy Jones
threatened to sue him, she still paid him $1,000 for them—when they were not even clearly his
to sell. Indeed, the very fact that this album went unreleased for over thirty years is inconsistent
with the premise that the possession of the tapes was some unimportant detail. The question of
damages in this case will depend on factual details regarding music industry custom and practice,
as well as a much fuller explication of the rights of the respective parties than the defendants
have offered.
Finally, the defendants argue that Montgomery abandoned the tapes. The Tennessee
Supreme Court “has defined abandonment as the ‘intentional relinquishment of a known right.”
Griffis v. Davidson Cty. Metro. Gov’t, 164 S.W.3d 267, 278 (Tenn. 2005) (quoting Carroll
County Bd. of Educ. v. Caldwell, 162 S.W.2d 391, 393 (Tenn. 1942)). “The inquiry whether
abandonment has occurred is predominantly a factual determination based upon all the relevant
circumstances. Id. at 279–80 (citing Coile v. Hudgins, 70 S.W. 56, 57 (Tenn. 1902); 1 Am. Jur.

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2d Abandoned, Lost, and Unclaimed Property § 41 (2004)). A finding of abandonment does not,
however, require an affirmative statement of intent to abandon. Abandonment “may be inferred
from the acts and conduct of the owner, which are clearly inconsistent with an intention to
continue the use of the property, and from the nature and situation of the property.” Id. at 281–82
(quoting 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property § 43 (2004)).
The defendants argue that Montgomery abandoned the master tapes by leaving them so
long in the recording studio. Montgomery has alleged, however, that he was merely following
industry practice, and the court is required to accept that assertion as accurate for the purposes of
a motion to dismiss. Simply leaving an item in what is the equivalent of storage, even for a very
long time, is not necessarily sufficient evidence to demonstrate an intent to relinquish one’s
ownership of the item. The court cannot conclude, as a matter of law, that the tapes were
abandoned.
3. Laches
Under Tennessee law, the defense of laches is based on the equitable principle that a
court “will not intervene on behalf of one who has delayed unreasonably in pursuing his rights.”
Long v. Bd. of Prof’l Responsibility of Supreme Court, 435 S.W.3d 174, 181 (Tenn. 2014)
(quoting Dennis Joslin Co. v. Johnson, 138 S.W.3d 197, 200 (Tenn. Ct. App. 2003)). “The
defense of laches is based on the doctrine of equitable estoppel, and is only applied where the
party invoking it has been prejudiced by the delay.” Assocs. Asset Mgmt. LLC v. Blackburn, No.
W2016-00801-COA-R3-CV, 2017 WL 1077060, at *2 (Tenn. Ct. App. Mar. 22, 2017) (quoting
Brown v. Ogle, 46 S.W. 3d 721, 726 (Tenn. Ct. App. 2000)). Tennessee courts recognize that
laches applies “only in comparatively rare cases.” Id. (citing S.M. Williamson & Co. v. Ragsdale,
95 S.W.2d 922 (Tenn. 1936)). The “[t]wo essential elements of fact” necessary to support a

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laches defense are “negligence and unexcused delay on the part of the” plaintiff and “injury in
the party pleading laches.” Id. (quoting Freeman v. Martin Robowash, Inc., 457 S.W.2d 606, 611
(Tenn. Ct. App. 1970)).
The defendants liken this case to another in which Montgomery was involved, Nunley v.
Estate of Nunley, 925 S.W.2d 538 (Tenn. Ct. App. 1996). In that case, a dispute arose regarding
who possessed the mechanical royalty 2 rights for a catalog of songs that Montgomery had
written between 1970 and 1975, including the song “One of These Days,” which the Court of
Appeals characterized as having become a “huge hit” when recorded by Emmy Lou Harris. Id. at
539–40. A man named Billy Gene Nunley had long claimed that he had purchased the royalty
rights from Montgomery, and, for a period of over fifteen years, Nunley received those royalties,
while Montgomery did not. Montgomery admitted that he realized, sometime in the 1970s, that
he had stopped receiving mechanical royalty checks for the relevant songs, although he claimed
that, at the time, he had been unaware of why the payments had stopped. Montgomery did not
sue anyone to recoup his rights until seventeen years later, when he became caught up in
litigation between Nunley and Nunley’s ex-wife regarding the royalties. Montgomery—whom
the ex-wife had named in a contempt petition because she suspected he was conspiring with
Nunley against her—filed a cross-claim and a counter-claim against the Nunleys, respectively,
alleging that the rights had been his all along. Id. at 540–41. The Court of Appeals held that
Montgomery’s claims were barred by laches. Id. at 542.
This case bears almost no resemblance to Nunley, outside of the superficial similarity that
both involve Montgomery and music he composed or recorded in the 1970s. In Nunley,
Montgomery was aware that his rights had been contravened for seventeen years before bringing
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“Mechanical royalties” are royalties paid for the sale of a copy of a recorded song, in contrast with
“performance royalties,” which are based on the song’s being played or broadcast—for example, over the
radio. See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798, 800 nn.3&4 (S.D.N.Y. 1981).

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suit. Here, he alleges that he voluntarily left the master tapes to be held by the studio, which they
were until 2013. The rights at issue in this case, therefore, did not even begin to be violated until
about five years before the suit was filed, when Nancy Jones obtained the tapes without
Montgomery’s consent. Admittedly, Montgomery did not, then, immediately file suit. There is
no reason, however, to conclude, at least at this stage, that his delay was unreasonable. The facts
as Montgomery has set them forth suggest that, after the defendants gained control of the
masters, Montgomery and Rounder engaged in further discussions that might have led to a
satisfactory result for all involved. The court will not assume that a delay of a few years, during
much of which there may still have been some hope of resolving the situation without litigation,
was so unreasonable as to justify the rarely-appropriate defense of laches. That is especially true
on a motion to dismiss, where the court has no evidence of any party’s state of mind or the
prejudice, or lack thereof, suffered by the defendants. The court, accordingly, will not dismiss
Montgomery’s claims due to the laches defense, although the plaintiffs may raise it again, if they
wish, at a stage in the proceeding in which a factual record will be available.
B. False Light Invasion of Privacy
Tennessee recognizes the claim of false light invasion of privacy as a cause of action
separate and distinct from defamation, to protect the rights of plaintiffs who “have had attributed
to them certain qualities, characteristics, or beliefs that, while not injurious to their reputation,
place those persons in an undesirable false light.” West v. Media Gen. Convergence, Inc., 53
S.W.3d 640, 645 (Tenn. 2001). In Tennessee, a false light claim requires that the defendant gave
publicity to the plaintiff that placed the plaintiff in a false light, that the false light is highly
offensive to a reasonable person (as determined objectively), and that the defendant acted with
knowledge or reckless disregard for the falsity of the publicized matter (as determined

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subjectively). Id. at 643–44 (quoting the Restatement (Second) of Torts (1977), § 625E); see also
Seaton v. TripAdvisor, LLC, 728 F.3d 592, 601 (6th Cir. 2013); Winslow v. Saltsman, No.
M2014-00574-COA-R3-CV, 2015 WL 6330403, *5 (Tenn. Ct. App. Oct. 21, 2015). “[P]laintiffs
seeking to recover on false light claims must specifically plead and prove damages allegedly
suffered from the invasion of their privacy.” West, 53 S.W.3d at 648 (citations omitted).
Montgomery argues that Rounder and Cracker Barrel committed false light invasion of
privacy by failing to identify him as the producer of the released version of the George
Jones/Smoky Mountain Boys album and representing the album as a “lost” recording, rather than
a recording that was always known to exist but that had never been released for legal and/or
business reasons. The defendants argue that Montgomery has failed to state a claim for false light
invasion of privacy because (1) he has failed to identify any statements that would be highly
offensive to a reasonable person and (2) he has failed to plead damages.
With regard to the characterization of the album as “lost,” the court agrees that no
reasonable juror could conclude that the language used was highly offensive. Using the term
“lost” to refer to a previously unreleased part of a deceased artist’s work, despite the fact that the
material was never actually physically lost, is, at worst, merely the use of dramatic marketing
language, not anything highly offensive. Moreover, such a characterization is not even clearly
false in this instance. The recordings of the Jones/Smoky Mountain Boys album were lost, in a
sense, at least to Jones himself and his record labels. The two known copies remained,
respectively, locked away in a Tennessee recording studio and tightly held by an estranged
former collaborator. Calling that album “lost” is a fair use of an ambiguous term.
In contrast, a reasonable juror might consider it highly offensive to release a creative
professional’s work without properly crediting him. The only damages related to that statement

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that Montgomery seeks, however, are “compensatory damages ‘for damage to the intrinsic value
of the master recordings” [resulting from the mass unauthorized sale of the album which was
compiled from the contents of the master tapes] ‘in no event less than $500,000.00.’” (Docket
No. 28 at 10 (quoting Docket No. 1 at 7 (alteration in original)).) By Montgomery’s own
description, those damages were not caused by the failure to credit him on the album, but by the
album’s release itself. He has, therefore, failed to plead damages arising out of the alleged false
light invasion of privacy.
While Montgomery generically asks for leave to amend his Complaint to correct any
deficiencies (Docket No. 27 at 1), he proposes no facts that he would plead to satisfy his failure
to assert actual damages arising out of Rounder and Cracker Barrel’s failure to credit him on the
released album. The court, therefore, will dismiss his false light invasion of privacy claims in
full.
IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion to Dismiss (Docket No. 14) will be
granted in part and denied in part. His claims for false light invasion of privacy will be
dismissed, and all other claims will remain pending.
An appropriate order will enter.
ENTER this 18th day of January 2019.
______________________________
ALETA A. TRAUGER
United States District Judge

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