This is a motion pursuant to CPLR 3211 (a) (1), (2) and (7) to dismiss the complaint and the claims set forth therein based on documentary evidence and on jurisdictional and statutory grounds, including time limitations. As class representatives, plaintiffs seek to recover a share of the proceeds of defendants’ successful prosecution of the RIAA v MP3.com litigation in the United States District Court for the Southern District оf New York. The latter concerned distribution over the Internet of digital audio files.
Parties
Plaintiffs are individual recording artists who, as long ago as the 1950’s, signed recording contracts with defendant companies or their predecessors, which granted master recording and licensing rights to defendants or their assignors. Plaintiff Tony Silvester, doing business as the Main Ingredient, is a citizen of New York who has recording contracts with RCA Records, as predecessor to defendant BMG Entertainment, Inc., dated 1969, 1972, 1980 and 1981, and one or more record contracts with Polydor Records, as predecessor to defendant Universal Music Group, Inc., dated 1989. Silvester and the other plaintiffs were primarily members of the named groups, and still hold rights to perform under those names. Lester Chambers, doing businеss as The Chambers Brothers, is a citizen of California who has recording contracts with Columbia Records, predecessor to Sony Music Entertainment, Inc., dated 1966 and 1969. Carl Gardner, doing business as The Coasters, is a citizen of Florida who has record contracts with Atlantic Records, predecessor to defendant Time Warner, Inc., et al., dated 1955, 1959 and 1965. Bill Pinkney, doing business as The Original Drifters, is а citizen of South Carolina, and has created master recordings pursuant to contracts with Atlantic Records, predecessor to Time Warner, Inc., and other record labels. Various defendants also have licensing and cross licensing agreements to use Pinkney’s works dated 1959, 1961, 1964 and 1970.
Defendants Time Warner, Inc., Universal Music Group, Inc., Sony Music Entertainment, Inc., and BMG Entertainment, Inc. are successors in interest to companies with which plaintiffs have recording contracts and are all either incorporated in New York or have principal places of business in New York.
Plaintiffs’ Claims
Plaintiffs claim to represent a class of thousands of recording artists and their heirs, executors, successors and assignees who, at various times between 1956 and February 1, 1996, signed master recording agreements with defendants or their predecessors in interest. The gist of the complaint is that the recording contracts gave defendants no right to exploit plaintiffs’ work in digital format. Plaintiffs allege that they and other proposed class members have no agreements with any defendant which authorize or entitle defendants to exploit plаintiffs’ sound recordings in any form other than as phonograph records or other “analog media.” Plaintiffs claim that their contracts, for which they receive trailing royalties for previously recorded works, did not confer rights on defendants to exploit the sound recordings through digital media including compact discs (CD’s) and digital audio files that can be distributed over the Internet and аcross computer networks. Plaintiffs also claim that their contracts do not constitute the full agreements between the parties because they are subject to the terms and provisions of the National Codes of Fair Practice for Sound Recordings of the American Federation of Television and Radio Artists (the phono codes), a series of collective bargaining agreements between the American Federation of Television and Radio Artists (AFTRA) and record producers, which plaintiffs contend provide that the sound recordings could not be used in any medium other than phonograph records.
Plaintiffs aver that the new digital mastering technology that record companies adopted in the early 1980’s enabled rеcordings to be copied without the loss of sound quality or distortions associated with the copying of analog recordings; thus digitalization was not permitted by the contracts or phono codes. Before the release of CD’s in digital form, sound recordings could only be distributed in fixed tangible analog media (vinyl records or tapes). In or about 1999, an audio format, “MP3,” was developed, allowing digital audio files to be compressed into much smaller files with little degradation of sound quality, which in turn made distribution over the Internet and across computer networks much easier (and permitted consumers to download digital audio files containing plaintiffs’ and other class members’ recordings at low or no cost). Plaintiffs also claim that various members of the rеcording industry, by prosecuting claims against MP3.com and Napster, Inc., obtained settlements of approximately $15 to 20 million and warrants
Specifically, plaintiffs and putative class members seek compensatory and punitive damages for the following allegations. Plaintiffs allege defendants breached express and implied provisions of the recording contracts, as modified by the “phono codes,” by digitalizing recordings and allowing or facilitating distribution of reсordings over the Internet, without protecting plaintiffs’ rights to royalties and licensing fees. Plaintiffs also claim copyright infringement pursuant to 17 USC § 501 (b) (the Copyright Act of 1976), and seek “equitable” shares of defendants’ recovered damages for copyright infringement in the federal courts, specifically one half of the infringement damages or other proceeds obtained by defendants from MP3.com in the MP3.com litigation and an accounting of all payments already made to songwriters and others to recoup improper payments. Plaintiffs assert that defendants have “judicially admitted” that they will share the MP3.com proceeds with all artists whose sound recordings appeared on the MP3.com Web site, based on a statement during argument before the Second Circuit. They also admitted a contractual agreement to share proceeds with Tony Silvester. Additionally, plaintiffs claim that defendants negligently and recklessly exposed class members to the risk of music piracy by releasing sound recordings in digital audio files on CD’s, and that defendants breached both implied covenants of good faith and fair dealing and a fiduciary obligation to protect plaintiffs’ beneficial interests or property rights in their sound recordings.
Defendants’ Claims
Defendants move to dismiss on the basis that the plain language of each of the recording agreements in question provided that in exchange for royalties, plaintiffs gave all of their rights in the sound recordings to the record companies. Additionally, defendants clаim that the Copyright Act does not provide for equitable apportionment; thus plaintiffs would not be entitled to any portion of the proceeds of the settlements in the copyright infringement litigation against MP3.com, Inc. They further assert that Copyright Act claims are exclusively within the jurisdiction of the federal courts, and that they have already been dismissed by the federal court. (Chambers v Time
History
All of the claims asserted in this action were the subject of a second amended complaint brought by plaintiffs in the United States District Court for the Southern District of New York. The original complaint was dismissed by the Honorable Jed Rakoff in Chambers v Time Warner, Inc. (
Discussion
Motion to Dismiss
In determining a motion to dismiss, the court’s role is ordinarily limited to determining whether or not the complaint states a cause of action. (Frank v DaimlerChrysler Corp.,
Breach of Contract Claims
Based on the submissions contained here, it appears that all of the original agreements contain provisions conveying full
Such contracts have been interpreted according to their plain meaning. The words by any method now or hereafter known or to become known, which are contained in these contracts, clearly anticipate development of new technologies. (See discussion in Greenfield v Philles Records,
In Greenfield v Philles Records (
The conclusion reached by the Court of Appeals in Greenfield (supra) mirrored that reached by Judge Rakoff in the Southern District action when he stated
*257 “This language (and the equivalent language in the other contracts) is clear. Without limitation it conveys all of plaintiffs’ rights in these recordings to the [r]ecord [c]ompanies, including the right to exploit the recordings by any method whatsoever, whether known at the time or ‘hereafter to become known.’ ” (Chambers,123 F Supp 2d at 200 .)
Plaintiffs claim that, somehow, the fact that the recording contracts here were subject to AFTRA union contracts or “phono codes” distinguishes their situation from that of the Ronettes in Greenfield is not persuasive. The phono codes are a series of fair practices agreements between AFTRA and the record companies which govern minimum wage and fee compensation and terms, including minimal payments for benefits to welfare funds and conditions for the engagement of artists making phonograph recordings. They do not affect the broader contractual provisions that convey the artists’ property rights to the record companies. In fact, the language of some of the AFTRA agreements or the phono codes specifically permits copying of mastеr recordings on “microgroove recordings or tape or any other similar or dissimilar device now or hereafter devised.” (1962 AFTRA contract, provision 8; see also Chambers,
Breach of Fiduciary Obligation
Plaintiffs’ complaint states a claim that defendants breached a fiduciary obligatiоn owed to defendants. However, under New York law, an artist’s assignment of rights to a record company in exchange for royalties is contractual and does not create a fiduciary relationship or duty. Unless parties can show a separate duty other than to perform under the contract, no fiduciary relationship between them is established. (Sony Music Entertainment, Inc. v Robison,
Breach of Covenant of Good Faith and Fair Dealing
The claims for breach of good faith and fair dealing do not state an independent cause of action. Every contract contains an implied covenant of good faith and fair dealing. However, such covenant does not impose any obligation upon a party to the contract beyond what the explicit terms of the contract provide. (Poley v Sony Music Entertainment,
Negligence Claim
Plaintiffs also assert that defendants negligently failed to protect plaintiffs’ rights to maximize royalties by releasing digital files that were subject to piracy. However, such claim is unavailing because the contractual rights specifically provide for the right to exploit the copyrighted sound recordings in “future technologies,” which clearly includes compact discs and other digital media. A plaintiff cannot transform a claim for breach of contract into a negligence claim by merely alleging a breach of due care. “[A] simple breach of contract is not to be considered a tort unless a legal duty independent оf the contract itself has been violated.” (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co.,
Copyright and Equitable Apportionment Claims
Plaintiffs’ claim for equitable apportionment pursuant to section 501 (b) of the Copyright Act does not state a cause of action and, if it did, would not be enforceable in this court. The Copyright Act does not give rights to “bеneficial owners” to equitable apportionment of damages recovered for infringement. It merely allows legal or beneficial owners to bring actions for copyright infringement. (17 USC § 501 [b].) Moreover, rights under the copyright laws may only be enforced in federal courts (28 USC § 1338 [a]; Estate of Hemingway v Random House,
Plaintiffs’ claim for equitable apportionment under New York law is also unsupported. The only such claim recognized by New York law arises out of apportionment of damages among tortfeasors, which is not the case here. Plaintiffs also claim that in the MP3.com litigation, they were promised 50% of the recovery because of a statement made by defendants in the Second Circuit, which they deem a judicial admission, entitling them to
Based on the foregoing, the claims set forth are hereby dismissed and the clerk is directed to enter judgment for defendants.