ROGER MILLER MUSIC, INC.; Mary A. Miller, Plaintiffs-Appellees, v. SONY/ATV PUBLISHING, LLC, Defendant-Appellant.
No. 10-5363.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 12, 2011. Decided and Filed: Feb. 22, 2012.
Rehearing and Rehearing En Banc Denied March 27, 2012.
672 F.3d 434
RAYMOND M. KETHLEDGE, Circuit Judge, concurring in part and concurring in the judgment.
My only disagreement with the court‘s opinion concerns its discussion of Gooch‘s adequacy and typicality in parts II.B.4(a), (b), and (e) and II.B.6 of the majority opinion. For two reasons, I think that Gooch is an inadequate representative for any remnant of the certified class.
First, Gooch‘s interests actually conflict with those of the class. Unlike virtually everyone else in the class, Gooch does not pay premiums for his policy. Meanwhile, if Life Investors must reimburse class members for medical expenses based on providers’ “list” prices (which virtually no one pays), rather than on the providers’ actual charges, then the premiums for classmembers who actually pay them are likely to increase dramatically. Gooch has no reason to care about that, which in my view makes him an inadequate representative of members who do.
Second, Gooch is not a credible representative of any remnant class. His deposition testimony regarding his finances is simply deceptive. Gooch testified that Social Security was his only source of income, that his wife chose to work overtime as a result of his medical expenses, that he and his wife owned one house, and that he and his wife owned one old car. It turns out that Gooch owns a business, that his wife never chose to work overtime, that he and his wife own another house, and that he and his wife own two newer cars in addition to the old one. These discrepancies do not reflect a “lack of insight[,]” Maj. Op. at 431; they reflect a lack of honesty.
I otherwise join the court‘s thorough and well-reasoned opinion.
Before: MOORE and ROGERS, Circuit
OPINION
KAREN NELSON MOORE, Circuit Judge.
Defendant-Appellant Sony/ATV Publishing, LLC (“Sony“) appeals the district court‘s judgment in favor of Plaintiffs-Appellees Mary Miller and Roger Miller Music, Inc. (collectively, “RMMI“) on their copyright infringement claim and the award of $903,349.17 in damages. Because the Copyright Act makes clear that the renewal copyright vested with Roger Miller, and thus with Sony as his assignee, we REVERSE the district court‘s judgment and REMAND with instructions to enter judgment in favor of Sony.
I. BACKGROUND
Famed singer and songwriter Roger Miller, best known for the hit song “King of the Road,” assigned the original and renewal copyrights to his songs to Tree Publishing Co. (Sony‘s predecessor-in-interest) in a series of contracts in the 1960s. In exchange for this assignment, Miller was entitled to receive royalty payments from the use of his songs. Relevant to this litigation are the songs originally copyrighted in 1964, for which the renewal copyright term began January 1, 1993.1
Sony filed applications to register the renewal copyrights for the 1964 songs with the United States Copyright Office in January and April 1992 and subsequently registered these copyrights. Miller died on October 25, 1992. In his will, he granted all interests in his intellectual property to his wife, Mary; Mary Miller assigned these interests to Roger Miller Music, Inc. Over the next twelve years, Sony continued to exploit the 1964 songs and pay royalties to RMMI.
In December 2004, RMMI brought suit against Sony for copyright infringement, seeking damages and a declaration that RMMI was the owner of the renewal copyrights to the songs Miller composed between 1958 and 1964. At this stage in the litigation, Sony did not contend that it owned the renewal copyrights to the 1964 songs or dispute RMMI‘s contention that ownership vested in RMMI due to Miller‘s death prior to the start of the renewal term. The district court granted Sony‘s motion for judgment on the pleadings, holding that Sony owned the renewal copyrights to the 1958-1963 songs and that it held an implied, non-exclusive license to exploit the 1964 songs based on RMMI‘s actions and inactions in accepting royalty payments without objection. Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, No. 04-1132, 2005 WL 5351103, at *1 (M.D.Tenn. July 11, 2005) (RMMI I). Sony subsequently filed a motion to alter or amend the judgment under
Both parties appealed, and a previous panel of this court affirmed as to Sony‘s ownership of the copyrights to the 1958-1963 songs, but reversed the holding that Sony‘s previous statements regarding the 1964 songs constituted judicial admissions. Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 391-95 (6th Cir.2007) (RMMI II). We remanded for a determination of whether the district court should hear arguments on ownership of the renewal copyrights to the 1964 songs.
On remand, the district court concluded that Sony did not own the renewal copyrights, because Roger Miller had died prior to the vesting of the renewal rights and assignees were not included in the list of statutory successors, and the court thus denied Sony‘s Rule 59(e) motion. The court incorporated its previous decision that Sony held an implied license to exploit the 1964 songs, but nonetheless appointed a Special Master to conduct an accounting of the infringement damages owed to RMMI. Sony objected to the Special Master‘s report on the grounds that Sony‘s status as a licensee precluded any liability for infringement. In response, the district court reversed its prior holding on the license issue and awarded RMMI $903,349.17 in damages. Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, No. 04-1132, 2010 WL 1026980, at *3 (M.D.Tenn. Mar. 18, 2010) (RMMI III).2 Sony timely appealed, arguing that it owned the renewal copyrights to the 1964 songs and, alternatively, that the district court‘s sua sponte reversal of its previous holding on the license issue was both procedurally impermissible and substantively incorrect.
II. ANALYSIS
A. Standard of Review
“‘A matter requiring statutory interpretation is a question of law,‘” which we review de novo. Roberts v. Hamer, 655 F.3d 578, 582 (6th Cir.2011) (quoting United States v. Brown, 639 F.3d 735, 737 (6th Cir.2011)).
B. Copyright Infringement
This case presents an interstitial issue of copyright law. Miller‘s assignment of the renewal copyright would indisputably have been made effective if he had still been living at the commencement of the renewal term on January 1, 1993. Equally indisputable is that the assignment would have been rendered ineffective if Miller had died before 1992. This case is before us because Miller was still living at the time in 1992 that his assignee applied to register the copyright, but Miller died before the start of the renewal term. RMMI contends that Miller must have been living at the start of the renewal term to effectuate his assignment to Sony, but Sony counters that Miller needed to survive only until the time at which the application was filed. Sony is correct that the Copyright Act supports the effectiveness of assignments in such circumstances.
1. The Renewal Copyright
Under the Copyright Act, an artistic work has an original copyright term of twenty-eight years followed by a renewal term of an additional sixty-seven years.
The Copyright Act provides that, if an application to register the renewal copyright is filed within the renewal year, the renewal copyright “shall vest, upon the beginning of such further term, in any person who is entitled under paragraph (1)(C) to the renewal and extension of the copyright at the time the application is made.”
Paragraph (1)(C) establishes a hierarchy of who is entitled to the renewal copyright:
(i) the author of such work, if the author is still living,
(ii) the widow, widower, or children of the author, if the author is not living,
(iii) the author‘s executors, if such author, widow, widower, or children are not living, or
(iv) the author‘s next of kin, in the absence of a will of the author.
The original and renewal copyrights are distinct legal interests. An author who sells the original copyright to his work thus has a second chance to claim ownership at the end of the original term. This system protects an author who was in a weak bargaining position at the outset but whose work ultimately proved successful. Stewart v. Abend, 495 U.S. 207, 218-19, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990). The statutory succession provision likewise provides a deceased author‘s family with a new chance to receive remuneration for a valuable creation. Id. at 218, 110 S.Ct. 1750.
2. Assignments
Notwithstanding this author-protecting policy, an author can assign his interest in the renewal copyright, either before or after the start of the renewal term. Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 375, 80 S.Ct. 792, 4 L.Ed.2d 804 (1960) (citing Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055 (1943)); Fred Fisher Music Co., 318 U.S. at 647, 655-56, 63 S.Ct. 773. However, the author has only a contingency interest in the renewal, which is all he can assign, “until the renewal period arrives.” Miller Music Corp., 362 U.S. at 375-78, 80 S.Ct. 792. If the author dies prior to that point,
Neither Fred Fisher Music nor Miller Music identified the point at which a pre-renewal-term assignment of a renewal copyright is no longer contingent and is therefore guaranteed to vest in the assignee. The Court did not define “renewal period” or otherwise specify whether an assignment sheds its contingent status upon commencement of the renewal year, registration, or commencement of the renewal term. See Stewart, 495 U.S. at 220 n. 2, 110 S.Ct. 1750 (recognizing the open question). Because the author in Miller Music had died more than one year before the termination of the original term, and thus outside of any potential definition of renewal period, the need for further clarity did not arise. See Miller Music Corp. v. Charles N. Daniels, Inc., 158 F.Supp. 188, 190 (S.D.N.Y.1957).
3. The Statutory Language Supports Sony
Despite its somewhat convoluted syntax, the statutory language enacted in 1992 provides an answer. An author is “entitled under paragraph (1)(C) to the renewal and extension of the copyright,”
Roger Miller was entitled to the renewal copyright because he was living at the time the application for registration was made. Sony was in turn entitled as Miller‘s assignee, and thus took ownership at the
The fact that the interest in the renewal copyright vests “upon the beginning of such further term,”
The district court (and RMMI) cited language in Broadcast Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762 (6th Cir.2005), and the prior panel‘s opinion in this case as support for its conclusion that an assignee has no interest in a renewal copyright if the assigning author dies prior to vesting. In both cases, this language is dicta. The issue in Broadcast Music was whether an author‘s widow and children take equal shares in the renewal interest upon statutory succession; the opinion mentioned vesting only in the course of an overview of the law regarding renewal copyrights. Id. at 763-64, 768-69. Moreover, Broadcast Music cited Miller Music, which, as described above, did not address this issue and, of course, was decided before the 1992 amendments. RMMI II remanded to the district court on the very issue of Sony‘s ownership interest in the 1964 songs and thus did not rule on that issue. 477 F.3d at 395.
4. RMMI‘s Position Is Inconsistent with the Statute
If Congress intended to condition all assignments on the author‘s survival to the start of the renewal term, it would not have split
RMMI‘s reading of
Nor does the statute support RMMI‘s contention that the statutory successors hold concurrent contingent interests along with the author‘s assignees from the time of application until the commencement of the renewal term and thereupon receive sole ownership of the copyright if the author has died in the interim. The statement in Broadcast Music that “renewal copyright interests can be held simultaneously by numerous parties” was made in the context of a dispute between an author‘s widow and child, both of whom occupy the same tier in the statutory successor hierarchy. 396 F.3d at 768. By contrast, a living author is the sole member of the top tier in that hierarchy. A spouse is not “entitled under paragraph (1)(C),”
Because Roger Miller was “entitled under paragraph (1)(C) to the renewal and extension of the copyright at the time the application [wa]s made,”
III. CONCLUSION
Because Sony owns the renewal copyrights to the 1964 songs as the assignee of an author who was living at the time of the application for renewal registration, we REVERSE the judgment of the district court holding Sony liable for copyright infringement and awarding damages to RMMI. We REMAND for entry of judgment in favor of Sony.
KAREN NELSON MOORE
UNITED STATES CIRCUIT JUDGE