Sixth Circuit affirms dismissal of lawsuit brought by granddaughter of late composer Jay Livingston, holding that termination notices served and filed by Livingston's daughter were valid and that granddaughter retained no continuing state law right to songwriter royalties after termination.
Starting in the 1940s, songwriter Jay Livingston composed a
series of superhits for Hollywood films and television, including
"Mona Lisa," "Que Será, Será,"
and "Buttons and Bows." Through a series of assignments
and amendments, Jay Livingston transferred his copyright interest
in several songs to a music publishing company, Jay Livingston
Music Inc., owned by his daughter, Travilyn.
On July 15, 1984, Jay executed an agreement assigning his
copyrights to a music publishing company, Jay Livingston Music, a
sole proprietorship owned by Travilyn, his daughter. Under the
terms of the "popular songwriters agreement[s]"
memorializing the assignment for each song, each assignment was to
last for 28 years from the date the copyright's original term
expired. In 1985, Jay and his wife established a family trust and
transferred all their assets to the trust. The trust received
Jay's right to receive royalties under each of the popular
songwriters agreements. Travilyn and her daughter, Jay's
granddaughter, Tammy, were among the beneficiaries of the trust.
Travilyn and Tammy received royalties as beneficiaries of the
family trust.
In 2000, Travilyn and her husband established Jay Livingston Music,
Inc as the legal successor to Jay Livingston Music. Jay then signed
an agreement with Jay Livingston Music Inc. that amended every
popular songwriters agreement to extend the original 28-year
assignment period to a period equal to the entire term of the
copyright.
After Jay's death in 2001, a debate ensued regarding what
copyright interests, if any, the family trust owned. A 2003
California probate court order approved by both Travilyn and Tammy
resolved that debate, stating that the family trust held no
copyrights ever owned by Jay and that such copyrights all are owned
by Jay Livingston Music Inc.
In 2015, Travilyn exercised her "termination right" for
the hit song "Que Será, Será." Under the
Copyright Act, authors—and certain heirs—may terminate,
after a statutorily defined period of time, transfers of their
copyrights by serving a termination notice to the grantee and
filing the notice with the U.S. Copyright Office. Congress enacted
the termination right to afford authors and their families a second
opportunity to market their works after an original transfer of
copyright. After serving the termination notice on Jay Livingston
Music Inc., Travilyn recorded the notice with the U.S. Copyright
Office. She also served Jay Livingston Music Inc. with termination
notices for 31 other copyright grants.
Tammy sued Travilyn and Jay Livingston Music Inc., seeking a
declaration that the termination notices were invalid.
Alternatively, Tammy argued that even if the termination notices
were valid, she continued to have a state law right to receive
royalties resulting from the exploitation of the terminated
copyrights. The district court granted the defendants' motion
to dismiss, holding that Tammy failed to state a claim.
The Sixth Circuit affirmed the district court's judgment and
rejected each of the alleged defects identified by Tammy. Tammy
argued that the 2000 agreement failed to extend the popular
songwriters agreement beyond the initial 28-year terms because Jay
signed the document as an "individual" rather than as
"trustee" of the family trust. Tammy contended that
without a valid extension made on behalf of the family trust, the
original assignments expired beginning in 2011, so there were no
copyright grants to terminate as of 2015. The court held that the
2003 California probate order precluded this argument. The order
was a final judgment on the merits involving the same parties, and
during the probate proceedings, Tammy could have
challenged—but did not—Jay Livingston Music Inc.'s
ownership of the copyrights.
Tammy claimed that the termination notices were invalid because
Section 203 of the Copyright Act requires that the grant be
"executed by the author" rather than by a trustee. The
court held that because Jay signed the 2000 agreement as an
individual rather than as a trustee, there was no basis to conclude
that the grant was not executed by the author.
Tammy argued that Jay rather than Travilyn owned Jay Livingston
Music, so there was no grant to a third party that could be subject
to termination. Tammy, however, attached the 1984 agreement to her
complaint, and the document showed that Travilyn owned Jay
Livingston Music. Because Tammy's own pleadings refuted her
ownership argument, she failed to state a claim.
Tammy alleged that various components of the termination notices,
other than the notice for "Que Será, Será"
violated the regulations promulgated by the Register of Copyrights
requiring proper identification of the terminated grant, an
accurate statement of the date of publication and a complete
statement of facts. Tammy, however, made no specific factual
allegations regarding the contents of the particular termination
notices at issue, so she failed to state a claim.
Finally, the court ruled that Tammy was not entitled to a
declaratory judgment that state law afforded her the right to
receive royalties tied to the now-terminated popular songwriters
agreements. Tammy failed to identify a state law cause of action or
a specific state law right creating such an entitlement, so she did
not articulate a plausible claim for relief.
In a concurring opinion, Judge Readler expressed skepticism
regarding whether Section 203 of the Copyright Act creates a
private cause of action that enables a plaintiff to sue for a
declaration that termination notices are invalid.
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