Reach Music Publishing, Inc. v. Warner Chappell Music, Inc.

988 F. Supp. 2d 395, 2013 WL 6767806, 2013 U.S. Dist. LEXIS 180073
CourtDistrict Court, S.D. New York
DecidedDecember 23, 2013
DocketNo. 09 Civ. 5580(LTS)(GWG)
StatusPublished
Cited by9 cases

This text of 988 F. Supp. 2d 395 (Reach Music Publishing, Inc. v. Warner Chappell Music, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reach Music Publishing, Inc. v. Warner Chappell Music, Inc., 988 F. Supp. 2d 395, 2013 WL 6767806, 2013 U.S. Dist. LEXIS 180073 (S.D.N.Y. 2013).

Opinion

[397]*397 OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Counterclaim Plaintiff Protoons, Inc. (“Protoons”) has moved pursuant to Federal Rule of Civil Procedure 26 and Federal Rules of Evidence 403 and 702 to strike in its entirety the expert report of Robert E. Allen submitted by Counterclaim Defendants Reach Music Publishing, Inc. (“Reach Music”), David Reeves, Reach Global, Inc. (“Reach Global” or “Reach”), and Michael Closter (collectively, the “counterclaim defendants”). Because we conclude that the opinions in this report, with some exceptions noted below, are admissible, Protoons’ motion is denied.

I. BACKGROUND

A. Counterclaim, Defendants’ Contentions

For purposes of providing background for this motion, we summarize the counterclaim defendants’ factual contentions. While Protoons disputes many of these contentions and asserts that important facts have been omitted, the counterclaim defendants’ factual contentions provide the basis for the expert testimony they are offering and provide the justification for their arguments as to that testimony’s relevance. Obviously, Protoons will be free to offer evidence contradicting the counterclaim defendants’ version of the facts at trial.

As described by the counterclaim defendants, David Reeves is a songwriter who co-wrote many compositions for the musical group Run-D.M.C. See Counterclaim Defendants’ Memorandum of Law in Opposition to Protoons’ Motion to Strike the Expert Report of Robert E. Allen, filed Nov. 12, 2013 (Docket # 202) (“Counterclaim Def. Mem.”), at 4. On May 1, 1988, Reeves, along with others involved with the compositions, entered into what the parties have termed “songwriter agreements” with Russell Simmons, the CEO and Chairman of Rush Groove. Unbeknownst to Reeves, his songwriter agreement transferred his rights in certain compositions to Protoons. Id. At the time he entered into his songwriter agreement, Reeves was not familiar with Protoons and had no dealings with Protoons. Id. Reeves did not keep a copy of the songwriter agreement. Id.

Nearly two decades later, on July 19, 2007, Reeves entered into an agreement with Reach Global, in which Reeves purported to assign to Reach Global his rights to the same compositions that he had previously transferred to Protoons in his songwriter agreement. Id. Because Reeves was unaware of Protoons’ rights to the compositions, he represented to Reach Global and to Reach principal Michael Closter that he “had never signed away any of his rights in the Compositions previously.” Id. Despite Reeves’ representations, Reach and Closter made numerous attempts to determine if there were any other parties who had interests in the. compositions. Id. at 5. They ran multiple searches for recorded documents and copyright registrations with the United States Copyright Office, all of which failed to reveal any information about Reeves’ prior conveyance to Protoons. Id. As part of this due diligence, Reach received documents from Reeves’ attorney, Lita Rosario-Davis. Id. Although Rosario-Davis gave Reach certain unsigned draft agreements, her documents did not include any copies of the songwriter agreement or any document indicating that Reeves had signed away any of his rights in the compositions. Id. Accordingly, Reach concluded that Reeves possessed the rights to the compositions and paid Reeves an aggre[398]*398gate royalty advance of $55,000 for a portion of his rights to the compositions. Id.

After executing the 2007 agreement with Reeves, Reach contacted Warner/Chappell Music, Inc., a sub-licensee of Protoons, to ask why it was infringing upon Reach’s rights to the compositions. Id. Warner/Chappell responded that it possessed the rights to exploit the compositions but did not provide any further explanation. Id. at 6. In June 2008, Closter, Reach’s principal, contacted Protoons’ counsel Mark Levinsohn to inquire about Protoons’ alleged rights to the compositions. Id. In response, Levinsohn asserted that Reeves had “signed away all of his rights” to the compositions to Protoons but did not provide any documentation or other evidence on this point. Id. at 7. Levinsohn further declared that Reeves was entitled to nothing and that Protoons would “bury” Reach in litigation fees if it pursued a claim for the compositions. Id. According to counterclaim defendants, “Levinsohn never once provided Closter with any information about [the songwriter agreements] nor even confirmed whether or not they existed.” Id. Thus, Levinsohn never confirmed “(1) whether there was a contract at all (as opposed to a mere assignment, for example); (2) if there was a contract, what was Reeves’ bargain in that contract, such as royalty payments; (3) who were the parties, and did they include Protoons; (4) whether there was any covenant or implied promise not to sue Protoons; (5) what rights or obligations, if any, Reeves granted or promised to Protoons; (6) whether it was. just an assignment, and if so, to whom; or (7) whether the purported contract was valid.” Id.

In an email to Closter on July 17, 2008, Levinsohn made “vague and unsubstantiated references” to certain “signed agreements” but did not provide any details about the agreements. Id. That same day, Closter responded to Levinsohn’s email by asserting that Protoons had not provided any proof for its claim to the compositions in the form of copyright assignments, agreements, or accountings. Id. at 7-8. From that point on, Protoons continued to refuse to produce any such documentation until after this lawsuit was filed. Id. Ultimately, Protoons provided counterclaim defendants with copies of several songwriter agreements in January 2010 pursuant to its discovery obligations. Id.

B. Procedural History

On September 3, 2008, Reeves and Reach Global filed an action in federal court against Protoons and Warner/Chappell asserting that Reeves and Reach Global were co-owners of the compositions, and therefore, that Protoons and Warner/Chappell must account for any income they received from exploitation of the compositions. See Complaint, filed Sept. 3, 2008 (Docket # 1 in 08 Civ. 7722). That case was ultimately dismissed. See Notice of Dismissal Without Prejudice, filed Oct. 1, 2008 (Docket # 7 in 08 Civ. 7722). A suit was filed in state court that was also dismissed. See Memorandum of Law in Support of Protoons’ Motion to Strike the Expert Report of Robert E. Allen Submitted by Counterclaim Defendants, filed Nov. 5, 2013 (Docket #200) (“Protoons Mem.”), 4-5.

On June 17, 2009, Reach Music and Reeves brought the instant action, naming Protoons and Warner/Chappell as defendants, see Complaint, filed June 17, 2009 (Docket # 1), and on November 20, 2009, Protoons asserted counterclaims against Reach, Reeves, and Closter, see Answer and Counterclaims of Defendant and Counterclaim Plaintiff Protoons, filed Nov. 20, 2009 (Docket # 23). After extensive litigation, the Court dismissed the complaint with prejudice. See Order, filed [399]*399Aug. 12, 2010 (Docket # 61). Protoons then filed amended counterclaims. See

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988 F. Supp. 2d 395, 2013 WL 6767806, 2013 U.S. Dist. LEXIS 180073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reach-music-publishing-inc-v-warner-chappell-music-inc-nysd-2013.