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Roberts V. Gordy - A Rogue Judge Or A Bad Omen For Music Publishers

July 5, 2017

This month’s article is written by John Ouellette, Law Offices of John R. Ouellette, Esq. He can be reached at john@jroentertainmentlaw.com. Any opinions expressed are solely those of the author. 

 Roberts v. Gordy

A Rogue Judge or a Bad Omen for Music Publishers

By John Ouellette

Roberts v. Gordy[1], is a copyright infringement lawsuit brought by William Roberts (professionally known as Rick Ross), Jermaine Jackson and Andrew Harr against Stefan Gordy (professionally known as Redfoo of the group LMFAO) and other defendants.  This case shines a light on some very common practices in the music publishing industry, and, if the plaintiffs are successful, could have significant consequences for music publishers.   The practices in question relate to the acquisition of co-writer and co-owner information for songs being delivered to the music publishers, and the resulting copyright registrations based on that information.

In the music publisher’s world, it is not uncommon to have copyrightable works with multiple authors and multiple owners.  When it comes to registering these works with the Copyright Office, having multiple authors and owners can make it challenging to obtain complete and accurate information for the registration application.  This is due in part because the music publisher relies on the songwriter to provide information related to the co-writers and co-owners.  Another factor that makes it difficult is that the administration departments (the people responsible for completing the registration applications) are stretched to capacity (or beyond) with respect to their workload.

Music Publishers often have multiple writers delivering new songs every day.  These songs are often delivered by the songwriter completing a form (or some other manner of delivering the information) that identifies any co-writers, their respective publishers, the authorship and ownership splits and PRO affiliations.  The songwriter that completes this form may not know the specific details of their co-writers’ agreements with their publishers (e.g., the correct name of the publishing catalog, whether a co-writer has a co-publishing agreement).  In fact, the songwriter may not even know whether the co-writers have signed a songwriter agreement with a publisher.  Simply put, the information turned in by the songwriter is not always reliable.  The administration departments are typically too busy to research which songwriters are signed to which publishers or to contact their co-owners to confirm the accuracy of the information submitted by the songwriters.  This results in copyright registration applications and, subsequently, copyright certificates, with incomplete or inaccurate information. 

Another common practice in music publishing is that each copyright owner typically submits a copyright registration application.  The result, multiple copyright certificates, often with slightly different information related to the copyright claimants (and sometimes the names of the songwriters).  This happens, again, because the administration departments do not have time to contact their co-owners to confirm information that should be included on the application or to determine whether an application has already been submitted.  Judge Williams took issue with the multiple registrations and directed the parties to review cases that support the position that each work should have only one registration.[2]  Additionally, the Code of Federal Regulations also provides, with some exceptions, that each version of a work should have only one registration.[3]    

These common practices, and the inaccuracies on the copyright registration applications that result from them, have potentially created a problem – the possibility of invalid copyright registrations.  In Roberts v. Gordy, the plaintiffs claim that the LMFAO song, Party Rock Anthem, infringes the phrase “Every day I’m hustlin” (from the Rick Ross song Hustlin’) by using the phrase “Every day I’m shufflin”.[4]  The plaintiffs sued, but the case was dismissed in part because they could not produce a valid copyright registration.

There are, in fact, three copyright registrations for Hustlin, and the Copyright Office issued three registration certificates (Pau003024979, PA0001334589 and PA0001367972).  Each certificate contains errors in one or more of the following areas: the year of creation, the names of the copyright claimants, the date of first publication, and the names of the authors.  For example, one certificate lists four authors, while the other certificates list only three.  One certificate identifies Sony/ATV Songs as a claimant, while the others do not.  Two certificates show the year of creation as 2006, while the other has it as 2005.  Many of the errors found on the certificates can be directly attributable to the way publishers obtain the information required for the copyright application (they get the information from their songwriters).  Other errors are not so easily explained.

For example, one certificate lists William Roberts as a claimant.  William Roberts (Rick Ross) assigned his rights to Sony/ATV Songs via a co-publishing agreement whereby Ross’ publishing company (initially 3 Blunts Lit At Once, but later changed to 4 Blunts Lit At Once) retains some ownership of the copyright.  So, the claimant for Ross’ contribution should have been identified as Sony/ATV Songs and 4 Blunts Lit At Once.  This error is likely attributable to the co-writers not knowing that Ross assigned his rights to Sony/ATV Songs.   Again, the publishers rely on their songwriters for this information, and publishers typically do not confirm with the co-owners the information submitted by the songwriters.

Another error, the year of creation, is most likely explained by a fairly common practice of deeming the work complete when it is recorded, or simply using the year of first publication as the year of completion.  This is done based on the idea that the particular version was completed when the work was published.  At the same time, the publisher does not always have a record of when the work was completed with respect to when the writers wrote the song.  This puts the publisher in a position of not having a definitive date. 

The incorrect date of first publication is harder to explain.  But it is entirely possible that this registration was related to a remixed version of the song that was published at a later date, or the person completing the application thought the remixed version was the first published version. 

Regardless of how these inaccuracies occurred, the Court, relying on 17 U.S.C. § 411(b)(1), asked the Register of Copyrights to determine whether the copyright certificates were valid.     

17 U.S.C. § 411(b)(1) reads as follows:

(b)(1) A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—

(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and

(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.[5]

The Register of Copyrights informed the Court that, had the Copyright Office known of the inaccuracies, they would have refused all three applications.[6]  Based on the response from the Register of Copyrights, the Court ruled that the plaintiffs did not have a valid copyright registration.  The plaintiffs dispute that the people who completed the copyright registration applications had knowledge that the information was inaccurate (which knowledge is required under the law), and, therefore, the certificates should not have been submitted to the Register of Copyrights.  While it does not appear there was ever any evidence introduced to show that the plaintiffs had actual knowledge of the inaccuracies on the copyright registrations, Judge Williams takes the position that the plaintiffs, at the very least, should have known the inaccuracies existed.[7]   

Judge Williams takes the position that the copyright owners should verify the information related to the co-writers and co-owners and inform their co-owners that they are submitting a registration application.  In addition, Judge Williams believes the copyright owners should have researched the Copyright Office online records to find any prior registrations.[8] 

These seem like wise suggestions, but I doubt the administration department in any large music publisher would find them workable.  As mentioned earlier, the administration departments are generally stretched to capacity by their workload.  Contacting co-owners to verify the information that will be put on the application would take a significant amount of time.  In addition, the administration department may not have anything more than the name of the songwriter.  How could they find the publisher to whom that writer assigned their copyright?  Also, anybody who has actually registered a copyright knows it usually takes several months for the Copyright Office to process the application and add the registration information to the online records.  Searching the Copyright Office online records will not help co-owners identify previous registrations if those registrations were submitted only a few months earlier.  Simply put, these suggestions are not realistic ways to fix the problems. 

The plaintiffs are appealing the decision.  If they are successful, then music publishers probably have nothing to fear.  If the decision is upheld, then music publishers may need to alter the way they obtain co-writer and co-owner information, and figure out a way to confirm the accuracy of that information and resolve any discrepancies, at least when it comes time to register a copyright with the Copyright Office.  With respect to those copyright registrations, music publishers may also need to find a way to have only a single registration for each song (regardless of the number of owners), rather than each publisher submitting its own application.  In addition to needing to revise these practices, music publishers could be faced with the prospect of thousands of invalid copyright registrations due to those registrations having the same or similar errors as those in the case at hand.

For those in music publishing, here’s to hoping for a rogue judge.

[1] Roberts v. Gordy, Case No. 13-24700-CIV-WILLIAMS (S.D. Fla. Apr 08, 2016)

[2] See id.

[3] 37 CFR 202.3 (1978)

[4] See Roberts, supra, note 1

[5] 17 U.S.C. § 411(b)(1)

[6] See Roberts, supra, note 1

[7] Id.

[8] Id.

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