Tavern Challenges BMI’s Chain of Title for Songs

Evie’s Tavern Ellenton, Inc. and owner Michael Evanoff (Evie’s Tavern) were sued by Broadcast Music, Inc. (BMI), The Bernard Edwards Company, LLC, R-Key Darkus Publishing, Orbi-Lee Publishing and other plaintiffs for copyright infringement.  The plaintiffs alleged that Evie’s Tavern violated their ownership rights by publicly performing copyrighted musical compositions without a license.  Instead of taking the plaintiffs’ ownership claims at face value, Evie’s Tavern challenged plaintiffs’ ownership claims.  Although Evie’s Tavern lost, this case illustrates how tenuous copyright ownership claims for musical works can be.

A plaintiff challenging the unauthorized public performance of a copyrighted musical composition must show:

(1) the originality and authorship of the compositions involved; (2) compliance with all formalities required to secure a copyright under Title 17, United States Code; (3) that plaintiffs are the proprietors of the copyrights of the compositions involved in the action; (4) that the compositions were performed publicly by the defendant; and (5) that the defendant had not receive permission from any of the plaintiffs or their representatives for such performance.

(Opinion pdf page 5).

Evie’s Tavern challenged whether BMI and the other plaintiffs are the proprietors of the copyrights.  BMI’s agreement with copyright owners provides that actions brought by BMI against copyright infringers will be for BMI’s sole benefit.  The focus was therefore on whether BMI had the authority to bring the lawsuit against Evie’s Tavern.

The Eleventh Circuit examined the chain of title for each song separately.

Good Times a/k/a Rapper’s Delight

The Eleventh Circuit ruled that the district court did not err in granting summary judgment in favor of The Bernard Edwards Company and BMI.  The district court erred in granting summary judgment to Sony/ATV because there was a genuine issue of material fact regarding Sony’s chain of title.  The error was harmless, though, because BMI would have been granted summary judgment even if Sony wasn’t involved in the case.

BMI established that it had a sound chain of title for a 50% interest in the song.  Copyright co-owners are tenants in common and may bring copyright infringement actions without the permission of the other co-owners.

Evie’s Tavern challenges the chain of title to BMI based on a purported assignment by the original copyright owner, Chic Music, Inc., to Plan-9 Music, Inc. and Bernard Edwards Productions, Inc. This alleged assignment was later amended to be an assignment to the song’s original authors Bernard Edwards and Nile Rogers. Whether the title was assigned to Bernard Edwards or Bernard Edwards Productions, Inc. is irrelevant. When Bernard Edwards died in 1996, because the copyright period had not expired his 50% ownership interest in “Good Times” reverted to his estate, even if he had assigned it previously to another party, Bernard Edwards Productions, Inc.  Appellants have not raised a genuine issue of material fact regarding the chain of title to BMI after Bernard Edwards’s death and the record supports a sound chain of title for this 50% interest, represented in the case as The Bernard Edwards Company, LLC. Further, since 2000, BMI has had a valid licensing agreement with The Bernard Edwards Company, LLC. Accordingly, because a copyright infringement claim can be maintained by a co-owner without joining the other co-owners, The Bernard Edwards Company, LLC and BMI are entitled to summary judgment. The district court’s decision granting summary judgment is therefore affirmed. 

(Opinion pdf page 7).

Oh, Pretty Woman a/k/a Pretty Woman

The Eleventh Circuit thought that Evie’s Tavern made a meritless argument that there was a genuine issue of material fact about this song’s title chain.  Evie’s Tavern argued that Acuff-Rose Publications ceased existence in 1985, that it could not have renewed the copyright in 1992 and that therefore the agreement between Acuff-Rose Music, Inc. and BMI did not create a valid license. 

Even if there is a deficiency in the renewal paperwork, and the copyright was renewed only by William Dees p/k/a Bill Dees, Acuff-Rose Music, Inc. was later assigned an interest in the title by Wesley K. Orbison. Accordingly, BMI has a valid licensing agreement through its agreement with Acuff-Rose Music, Inc. Therefore the district court properly granted summary judgment on this title and the award is affirmed.

(Opinion pdf page 8).

I think the Eleventh Circuit’s explanation glosses over some important details.  For example, the court does not explain why Wesley K. Orbison could later assign Acuff-Rose Music, Inc. an interest if William Dees was the only one who filed a renewal.  And was it really a renewal or was it a copyright grant termination?  If a copyright grant termination was required and Wesley K. Orbison did not file one, then he would not have an interest to assign to Acuff-Rose Music, Inc.  There are enough unanswered questions about the ownership rights to this song to create a genuine issue of material fact for trial. The Eleventh Circuit should not have affirmed the district court’s summary judgment grant for this song.

Kryptonite

BMI had valid licensing agreements with both Escatawpa Songs and Songs of Universal.  Both Escatawpa Songs and Songs of Universal own 50% of Kryptonite.  The Eleventh Circuit affirmed the district court’s summary judgment ruling in favor of BMI and the other plaintiffs.

Angry All the Time

The copyright for “Angry All the Time” was registered to Bruce Robison Music and Tiltawhirl Music. As is clear from the registration form, an authorized agent of Carnival Music registered the song on behalf of Tiltawhirl Music. This is further established in BMI’s agreement with Carnival Music, where it specifically notes that it is doing business as Tiltawhirl Music. Accordingly, the licensing agreement between BMI and Carnival Music doing business as Tiltawhirl Music validly licenses the title to BMI. Further, although not every word of the licensing agreement between Bruce Robison Music and BMI is legible, it is clear that it is a licensing agreement between BMI and Bruce Ben Robison doing business as Bruce Robison Music, and that it is signed. Accordingly, the summary judgment award is affirmed.

(Opinion pdf page 9).

Bring Me to Life

The district court ruled that Evie’s Tavern infringed the copyrights belonging to Zombies Ate My Publishing and Forthefallen Publishing, BMI and State One Music America.

Although the district court improperly granted summary judgment in State One Music America’s favor, because there is a genuine issue of material fact as to whether it is a licensee of the copyright, because BMI is still able to maintain a copyright infringement action on this title, the error was harmless and the award is affirmed.

(Opinion pdf page 10).

Evie’s Tavern claimed that it was an innocent infringer.  The Eleventh Circuit did not discuss this issue on the merits.  

Appellants’ argument that the disputed fact of whether or not they were innocent infringers was sufficient to survive a motion for summary judgment is misplaced.  The district court did not need to make a finding as to whether Appellants’ infringement was innocent or willful to grant summary judgment or to award statutory damages within the default range.  The district court did not specifically find that Appellants acted willfully, rather it exercised its discretion in refusing to reduce the statutory damages below the normally applicable minimum. The courts have wide discretion in awarding damages within the statutory range provided in § 504(c), and here the district court’s imposition of damages was not an abuse of discretion.

(Opinion pdf pages 10-11).

The Eleventh Circuit also ruled that the district court did not abuse its discretion in awarding attorneys’ fees to the plaintiffs or in granting plaintiffs a permanent injunction. 

This case is Broadcast Music, Inc. v. Evie’s Tavern Ellenton, Inc., No. 13-15871, Eleventh Circuit Court of Appeals.

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