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Williams v. Curington

August 24, 2009


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Esther Williams brings this action against defendant Robert Curington.*fn2 The dispute concerns the rights to Williams's 1975 recording of the song "Last Night Changed It All (I Really Had A Ball)." Williams claims that she has held the copyright to the sound recording of the song since 1977, but Curington claims that he holds the copyright. In the mid-2000s, Curington sold non-exclusive licenses for the sound recording to Island Def Jam Music Group ("Def Jam") and Interscope Geffen A&M Records ("Interscope"). Williams asserts claims against Curington for copyright infringement pursuant to the Copyright Act of 1909*fn3 ("Copyright Act"), as well as common law claims for breach of contract, false light, and violation of the right of publicity. Currently before the Court is a motion for summary judgment from Curington. For the reasons discussed below, this motion will be granted in part and denied in part.


Williams is a singer who recorded her first album, "Let Me Show You," on the Bullseye Records label ("Bullseye") in 1975. Am. Compl. ¶ 7. This album included the song "Last Night Changed It All." Id. At issue in this case are Curington's allegedly impermissible grants of non-exclusive licenses to sample that song to Interscope around 2002 and to Def Jam in 2004. See id. ¶¶ 25, 27, 31. Williams's and Curington's accounts of the ownership history of the sound recording to "Last Night Changed It All" differ markedly and form the core of their dispute.

Curington and Williams agree that on December 19, 1975, Williams entered into a contract with Bullseye with respect to her recordings with the company. Id. ¶ 8; Curington Mem. at 3. At this point, however, their stories diverge. Williams contends that, through her contract with Bullseye, she transferred her copyright in the sound recording of "Last Night Changed It All" to the company.*fn4 Am. Compl. ¶ 8. In exchange, she claims that Bullseye promised to pay her royalties based on record sales and render her regular periodic accounting statements of revenue generated from these sales. Id. Williams asserts that the term of the contract was one year followed by four one-year consecutive extensions at Bullseye's option. Id. According to Williams, she immediately asked for a copy of the signed contract, but was not provided with a copy until several months after signing. Williams Aff. ¶¶ 10-11. She contends that this copy of the contract contained several terms that were not discussed previously and that she did not recall being in the original copy that she signed. Id. ¶ 11. Curington was allegedly absent from the contract signing and all related discussions, and was in no way affiliated with Bullseye at this time. Id. ¶¶ 13-16; see Wheeler Aff. ¶ 9; Drennen Aff. ¶ 10.

Williams alleges that Bullseye breached its contract with her by failing to make any royalty payments or render any accounting statements to her. Am. Compl. ¶ 11. Thus, according to Williams, her contract with Bullseye was either void or unenforceable on or before March 1, 1977. Id. Williams contends that since that date, she has retained the copyright to the master recording of "Last Night Changed It All." Id. ¶ 12. In support of her contention, Williams points to a Certificate of Registration from the U.S. Copyright Office -- effective, January 17, 2006 -- which shows that she was a renewal claimant for the copyright of the "Last Night Changed It All" sound recording. Pl.'s Opp'n, Ex. 3. She highlights the fact that the Copyright Office itself sent her the application. Am. Compl. ¶ 13.

Curington, on the other hand, contends that Williams never held the copyright to "Last Night Changed It All" because she was a "work for hire" employee at Bullseye. Curington Mem. at 2. Hence, he alleges that Bullseye always held the copyright to the sound recording of "Last Night Changed It All."*fn5 See id. Moreover, he contends that the contract Williams signed with Bullseye provided for Bullseye's ownership of "Last Night Changed It All." Id. Curington has produced a contract between Williams and Bullseye, signed on December 19, 1975, that gave Bullseye "the sole, exclusive and perpetual ownership of and in masters made hereunder, including, but not limited to, all master recordings" produced by Williams for Bullseye.*fn6

Curington Mot., Ex. D ¶ 5(A)(v). The contract also provides that "recording costs and all payments to [Williams], if any, with respect to the recordings made hereunder, shall be charged to [Williams] as non-returnable advances against [Williams's] royalties... and shall be deducted from [Williams's] royalties when earned." Id. ¶ 3(e). Curington contends that Bullseye made at least $11,339 in advances to Williams, but her first album sold only fourteen copies. Curington Mem. at 7. According to Curington, then, the contract's provision that Bullseye would recoup its costs before Williams was entitled to royalties explains why Williams never received any royalties. See id. To support his proposition that Williams does not hold the copyright to "Last Night Changed It All," Curington also points to a 2000 agreement for the rights to the song between Williams and Mercer Street Music, Inc., a recording company. Curington Mot., Ex. G at 1. This agreement states that Williams "was unsuccessful in definitively determining legal ownership of the Master and is able to grant only those rights in law held by her as the Artist of the Recording." Id.

Beyond the conflicting versions of Williams's interest in the sound recording, Curington's account of his own relationship with Bullseye -- and his interest in "Last Night Changed It All" -- is also inconsistent. In his affidavit, he contends that he became a partner of Bullseye in 1976 and that he remains a representative of that company. Curington Aff. ¶¶ 2-4, 15. Thus, he claims that he is authorized to negotiate licenses for use of "Last Night Changed It All" as a Bullseye representative. See id. ¶¶ 15-16. However, at his deposition, Curington acknowledged that Bullseye went out of business in the mid-1980s. Curington Dep. at 49. He also stated that he was involved with Bullseye only as a producer and publisher. Id. at 17, 75. According to Curington's deposition testimony, he received a fifty percent interest in the publishing rights to "Last Night Changed It All" around 1980-1981 in return for production work he performed for Bullseye. Id. at 25-26.

On June 22, 2004, Curington entered into a non-exclusive licensing agreement with Def Jam for the use of "Last Night Changed It All." Pl.'s Opp'n, Ex. 2. Pursuant to that agreement, Def Jam sampled "Last Night Changed It All" on "Last Night Skit," a track by the rap artist Ghostface Killah, released on April 20, 2004. Am. Compl. ¶ 15. Williams says that she discovered this sampling in or about 2005. Id. Williams also contends that she discovered another unauthorized sample, which was used in the song "Late Night" by rap artist Tupac Shakur, released by Interscope on November 26, 2002. Id. ¶ 27.

On April 19, 2007, Williams filed a complaint against Curington and several other defendants in this Court. She filed an amended complaint on October 19, 2007. Apart from Curington, all other defendants have reached settlement agreements with Williams or have otherwise been dismissed from the case. Williams asserts claims against Curington for breach of contract (Count I), copyright infringement (Count II), false light (Count III), and violation of the right of publicity (Count IV). On October 20, 2008, Curington filed a motion for summary judgment, which focuses solely on Counts I and II. Curington argues that Williams's copyright infringement and breach of contract claims are time-barred and, in any event, that he is entitled to summary judgment on the copyright claim because Williams never owned a copyright for the sound recording of "Last Night Changed It All." Curington Mot. at 8-12.


Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 ...

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