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Willis v. Scorpio Music (Black Scorpio) S.A.

United States District Court, S.D. California

June 24, 2016



          Barry Ted Moskowitz, Chief Judge United States District Court

         Defendants Can’t stop Productions, Inc., Scorpio Music (Black Scorpio), S.A. and Henri Belolo have filed a motion to dismiss Plaintiff’s First Amended Complaint (“FAC”). For the reasons discussed below, Defendants’ motion is DENIED.

         I. BACKGROUND

         In a prior lawsuit, Scorpio Music S.A. v. Willis, Case No. 11cv1557 BTM(RBB), Scorpio Music (“Scorpio”) and Can’t Stop Productions, Inc. (“CSP”) sought a judicial determination regarding the percentage of copyrights to 24 compositions (“24 Disputed Works”) that Victor Willis was entitled to recover upon termination of his grants of copyright. Willis filed a counterclaim for a declaratory judgment that Henri Belolo (“Belolo”) did not contribute to the authorship of the lyrics or the music of the 24 Disputed Works and that Willis was entitled to recapture 50% of the copyright interests in each of those works. (Willis did not dispute that Jacques Morali composed the music to these works.)

         After a jury trial in February 2015, the Court issued a judgment that decreed that: (1) Belolo is not a joint author of 13 of the 24 Disputed Works (the “13 Compositions”), including “YMCA, ” and that Willis has recaptured 50% of the copyrights in those 13 works; and (2) Willis has recaptured 33% of the copyrights in 20 additional compositions, including 11 of the 24 Disputed Works (the “20 Additional Compositions”).

         On May 13, 2015, Willis commenced this action. His first four causes of action were based on allegations that Belolo made false claims to authorship of the 13 Compositions, allowing Belolo to collect royalties in connection with uses of those compositions. Willis also asserted claims of vicarious copyright infringement against Belolo and breach of fiduciary duty against CSP. These claims alleged that Belolo and CSP allowed Sixuvus, Ltd. (“Sixuvus”) to present grand rights public performances of some of the 13 Compositions, 20 Additional Compositions, and “Macho Man, ” and that Willis was never paid proceeds from the dramatic performances.

         In an order filed on January 19, 2016, the Court granted a motion to dismiss filed by Defendants. The Court dismissed the first four causes of action as barred by the doctrine of res judicata. The Court found that these claims were based on the same transactional nucleus of facts as Willis’s counterclaim in Scorpio Music S.A. v. Willis, Case No. 11cv1557 BTM(RBB). The Court dismissed the vicarious copyright infringement claim because the Complaint alleged that CSP had granted Sixuvus a license for dramatic performances of the compositions at issue. The Court also dismissed the breach of fiduciary duty claim because co-owners of copyrights do not owe each other a fiduciary duty.

         On February 18, 2016, Willis filed his FAC. The FAC asserts two claims: (1) vicarious copyright infringement for unauthorized dramatic public performance (against Belolo); and (2) conversion (against CSP and Belolo). The FAC alleges that Sixuvus, which was controlled by Belolo and CSP, made dramatic “grand rights” performances (“Dramatic Performances”) of at least three of the 13 Compositions, including “YMCA” and “Hot Cop, ” at least two of the 20 Additional Compositions, including “In the Navy” and “Go West, ” and “Macho Man.” (FAC ¶ 24.) According to the FAC, CSP did not in fact grant Sixuvus a license to present dramatic performances of these compositions, and CSP and Belolo failed to account to Willis for any portion of the monies received by them from Sixuvus for the Dramatic Performances.


         Defendants move to dismiss the FAC for failure to state a claim. As discussed below, the Court finds that Willis has pled sufficient facts establishing a plausible claim for vicarious copyright infringement and conversion.

         A. Vicarious Copyright Infringement

         1. Sham Amendment

         Defendants argue that the FAC is a sham amendment because the original complaint alleged: "During the three years prior to the commencement of this Action, Defendant CSP authorized third parties, including, without limitation, Sixuvus, to present the Dramatic Performances on a royalty-free license basis.” (Compl. ¶ 57.) The FAC, in contrast, alleges, “Sixuvus failed to seek, and Defendants did not grant Sixuvus, a grand rights license for live performances for the subject musical compositions.” (FAC ¶ 36.) Footnote 1 on page 9 of the FAC explains: “In the initial complaint, it was inadvertently alleged in error that Belolo and/or Can’t Stop had in fact issued Sixuvus a license for the use of compositions for purposes of live performances when, in fact, no such license had been issued.”

         Under the California law cited by Defendants, “the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency.” Owens v. Kings Supermarket, 198 Cal.App.3d 379, 384 (1988). If the pleader fails to explain the inconsistency, “the court may disregard the inconsistent ...

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