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Nance v. Equinox Music

October 22, 2010

WILLIE NANCE, STAGE PRODUCTIONS MUSIC PLAINTIFFS,
v.
EQUINOX MUSIC, A DIVISION OF AVI MUSIC PUBLISHING GROUP, INC. AND ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNEES; A.V.I. ENTERTAINMENT GROUP INC., A.V.I MUSIC PUBLISHING GROUP, INC., A.V.I. RECORD DISTRIBUTION CORPORATION ("AVI"); EMBASSY MUSIC CORPORATION; MUSIC SALES CORPORATION; AMERICAN VARIETY INTERNATIONAL ("AVI") AND ALL OF THEIR AFFILIATES, SUBSIDIARIES, SUCCESSORS, AND ASSIGNEES; RAYMOND HARRIS; AND OTHER CORPORATION(S) CONNECTED TO SALES OF "AIRPOWER", DEFENDANTS.



The opinion of the court was delivered by: Hon. Sharon Johnson Coleman United States District Court

Judge Sharon Johnson Coleman

Magistrate Judge Arlander Keys

MEMORANDUM OPINION AND ORDER

Defendant Raymond Harris ("Harris") filed his Motion for Judgment on the Pleadings seeking dismissal of all claims against him in Plaintiffs Willie Nance and Stage Productions Music's (collectively "Plaintiffs") First Amended Complaint ("FAC"). The FAC asserts three claims against Harris seeking: (1) termination of certain copyrights granted to Defendant Equinox Music; (2) damages for breach of contract; and (3) damages for fraudulent misrepresentation. Harris alleges that Plaintiffs are not entitled to seek termination of the copyrights as relief against him and that Plaintiffs' other claims are barred by the applicable statute of limitations. For the reasons that follow, the Court grants Harris's motion.

BACKGROUND

Plaintiff Willie Nance ("Nance") is a songwriter and owner of Plaintiff Stage Productions Music ("Stage Productions"). (Dkt. No. 13 ¶¶ 5-6.) On July 31, 1978, Plaintiffs and Donald Burnside*fn1 ("Burnside") entered into a Standard Songwriter's Contract ("the Agreement") with Defendant Equinox Music ("Equinox"), which is a division of Defendant AVI Music Publishing Group, Inc. ("AVI Publishing"). (Id. ¶ 11.) According to the Agreement, Stage Productions and Equinox were both "Publishers" and were to each own 50% of the publishing receipts of the songs composed under the Agreement. (Id. ¶ 13.) Nance and Burnside were both "Writers" who assigned their rights in a musical composition titled "BE YOURSELF" to the Publisher, including the right to secure copyrights for the composition. (Id.at Ex. 1 p. 1.) The Publisher agreed to pay royalties to Nance and Burnside in January and July of each year for copies of the composition sold in the United States and Canada. (Id.) The Publisher had the right to assign, transfer, or sell any copyright granted pursuant to the Agreement as long as the Publisher retained a royalty participation arising out of the copyright. (Id. ¶ 5(d).) Harris executed the Agreement as an authorized signer on behalf of Equinox. (Id. p. 4.)

Plaintiffs allege that they wrote an additional song titled "WELCOME TO DISCO" in 1979 that fell under the terms of the Agreement. (Dkt. No. 13 ¶ 15.) Defendants allegedly combined the two compositions into a third song titled "AIR POWER." (Id.) Plaintiffs allege that AIR POWER and a remixed version of BE YOURSELF are currently available for sale and are generating royalties. (Id. ¶¶ 16-17.)

Plaintiffs further allege that Nance received a letter stating that 25,000 copies of AIR POWER were sold during the first six weeks of its release in 1979. (Dkt. No. 13 ¶ 41.)*fn2

The United States Copyright Office lists Defendant A.V.I. Record Distribution Company ("AVI RDC") as the registered owner of the AIR POWER copyright. (Id. ¶ 28.)

Plaintiffs filed the FAC after their attempts to seek an accounting of the receipts resulting from sales of AIR POWER proved unsuccessful.*fn3 (Id. ¶¶ 23-31.) The FAC seeks a termination of AVI RDC's copyright, return of the masters for BE YOURSELF, WELCOME TO DISCO, and AIR POWER, as well as unspecified monetary damages for breach of the Agreement and for fraudulent misrepresentation. (Id. pp. at 15-16.) Plaintiffs also seek the establishment of a system of accounting for any sales of AIR POWER subsequent to final judgment. (Id. at p.16.)

LEGAL STANDARD

Under Rule 12(c), a party can move for judgment on the pleadings after the filing of both the complaint and answer. Brunt v. Serv. Emp. Int'l Union, 284 F.3d 715, 718 (7th Cir. 2002). A district court reviews Rule 12(c) motions under the same standard as a motion to dismiss under Rule 12(b). N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998). A court will grant a Rule 12(c) motion only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief. Id. While a district court will view the facts in the complaint in the light most favorable to the nonmoving party, a court is not obligated to ignore any facts set forth in the complaint that undermine the plaintiff's claim or to assign any weight to unsupported conclusions of law. Id. If matters outside of the pleadings are presented to and not excluded by the court, then the motion must be converted to one for summary judgment. R. J. Corman Derailement Serv. LLC v. Int'l Union of Operating Eng'rs, 335 F.3d 643, 647 (7th Cir. 2002).

In considering a Rule 12(c) motion, a court must first determine what documents constitute the pleadings. City of S. Bend, 163 F.3d at 452. The pleadings include the complaint, the answer, and any written instruments attached as exhibits. Id.; see also Fed. R. Civ. P. 10(c). The Seventh Circuit has interpreted the term "written instrument" to include such documents as affidavits, ...


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