Monday, October 08, 2007

2nd Circuit Reinstates Copyright Claims Against Singer

Copyright infringement claims can go forward against Mary J. Blige, the "Queen of Hip-Hop Soul," the 2nd U.S. Circuit Court of Appeals ruled Friday, reversing a lower court determination.

Songwriter Sharice Davis filed suit against Blige and others, claiming the singer used two of Davis' songs on a 2001 hit album without giving her any credit. But Davis' co-author, Bruce Chambliss, transferred his rights to the songs to his son, Bruce Miller -- a defendant in the case -- one day before being deposed.

Southern District of New York Judge Charles S. Haight Jr. held in Davis v. Blige, 419 F. Supp. 2d 493, that Davis could not sue Blige and others over Blige's songs "LOVE" and "Keep it Moving" because "Davis' [alleged] status as joint owner with Chambliss, who in turn transferred his interests to Miller, bars her from stating a claim for copyright infringement against Miller, or any other of the defendants, [who are] his licensees."

The 2nd Circuit disagreed in Davis v. Blige, 05-6844-cv, In a decision by Judge José A. Cabranes, it held that an action for infringement by the co-author of a song could not "be defeated by the 'retroactive' transfer of copyright ownership from another co-author to an alleged infringer."

Judge Ralph K. Winter and Eastern District Judge Edward R. Korman, sitting by designation, joined in the decision.

Davis alleged that "LOVE" and "Keep it Moving," two of the songs on Blige's triple platinum album called "No More Drama," infringed on the copyrights to two of her songs.

"She claims that 'LOVE' is virtually identical to her composition 'L.O.V.E.' and that 'Keep It Moving' bears substantial similarity to her composition 'Don't Trade in My Love,' Judge Carbranes said.

Davis did not receive any song-writing credit on Blige's album for the songs she says were co-written by her and Chambliss, who is not a party in the case.

Davis said she met Blige, who is Miller's sister and Chambliss' stepdaughter, in the late 1990s. She said she performed "L.O.V.E." for Blige at that time, and that Miller subsequently approached her on behalf of Blige, seeking to buy several of her songs, including "L.O.V.E." Davis allegedly declined the offer.

In August 2001, defendants Ausur Music, Mary J. Blige Publishing, Bruce Miller Publishing, and Kwame Holland Publishing registered "LOVE" and defendant Universal Musica MCA Music Publishing, and Blige, Miller, and Dana Stinson registered "Keep It Moving" with the U.S. Copyright Office.

In February 2002, Miller agreed to provide Universal with "an exclusive license to exploit his copyright interest in the Album compositions as well as his copyright interests in any other compositions not previously assigned to other music publishing companies."

In August 2002, Davis registered her compositions with the Copyright Office, and listed Chambliss as a co-author. A year later, she filed her suit, alleging claims under the Copyright Act. She also stated claims under New York law for unfair competition, unjust enrichment and violations of New York's consumer protection statutes.

Discovery in the case ensued. But just one day before Chambliss was to be deposed, he allegedly transferred interest in the disputed songs to Miller.

"Defendants argue that, as a result of the transfer agreements, Miller became a co-owner of the disputed compositions as of the date of the creation of the compositions," Cabranes said. "Accordingly, they contend that, because Davis cannot sue a co-owner of her copyright for infringement, Davis's suit is barred against Miller and those to whom Miller had licensed the disputed compositions (including Blige and the other defendants)."

The circuit said the written transfer agreements "cannot extinguish Davis' accrued infringement claims against any of the defendants."

Richard J.J. Scarola and Alexander Zubatov of Scarola Ellis in Manhattan represent Davis.

"We are thrilled with the decision because it allows a meritorious case to go forward, and more broadly it establishes a legal principle that has not been addressed at the circuit court level," Scarola said.

Jonathan D. Davis, a Manhattan attorney at Jonathan D. Davis, P.C., who represents Blige, said his client intends to seek a hearing before the full appellate court.

The other defendants were represented by Cynthia S. Arato of Gibson Dunn & Crutcher, Andrew H. Bart of Jenner & Block, and Gregory J. Watford and George T. Gilbert, who are both Manhattan solo practitioners.

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