UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2177
ELI BROWN, III,
Plaintiff - Appellant,
versus
MICHAEL C. FLOWERS, a/k/a Mike City,
Defendant - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CA-02-862-NCT)
Argued: May 23, 2006 Decided: July 28, 2006
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote a
separate opinion concurring in the judgment in part and dissenting
in part.
ARGUED: Thomas Haywood Stark, STARK LAW GROUP, P.L.L.C., Chapel
Hill, North Carolina, for Appellant. Reginald K. Brown, Los
Angeles, California, for Appellee. ON BRIEF: Seth A. Neyhart,
STARK LAW GROUP, P.L.L.C., Chapel Hill, North Carolina, for
Appellant. Stephen E. Robertson, ROBERTSON, MEDLIN & TROUTMAN,
P.L.L.C., Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In the present civil action based upon federal question
jurisdiction, Eli Brown, III (Plaintiff) sued Michael Flowers
(Defendant) for violation of the Copyright Act of 1976 (the
Copyright Act), Pub. L. No. 94-553, 90 Stat. 2541 (1976), breach of
contract under North Carolina common law, fraudulent concealment
under North Carolina common law*, breach of fiduciary duty under
North Carolina common law, and violation of North Carolina’s
statutory prohibition against unfair and deceptive trade practices,
N.C. Gen. Stat. §§ 75-1.1 et. seq. Additionally, Plaintiff alleged
a claim seeking a partnership accounting under the North Carolina
Uniform Partnership Act,
N.C. Gen. Stat. § 59-52.
Defendant moved to dismiss the entire complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)). Although
the district court granted Rule 12(b)(6) dismissal of Plaintiff’s
federal copyright claim, it allowed Plaintiff’s remaining state law
claims to proceed. Defendant subsequently moved for summary
judgment on the remaining state law claims, which motion the
district court granted in toto.
Plaintiff noted this timely appeal. On appeal, Plaintiff
challenges the district court’s Rule 12(b)(6) dismissal of his
federal copyright claim and the district court’s entry of summary
*
With respect to the fraudulent concealment claim, Plaintiff
pled an alternative cause of action alleging negligent
misrepresentation under North Carolina common law.
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judgment in favor of Defendant with respect to his remaining state
law claims.
Our review of the district court’s Rule 12(b)(6) dismissal of
the Plaintiff’s federal copyright claim is de novo and focuses only
on the legal sufficiency of the complaint. Eastern Shore Mkts.,
Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir.
2000). A complaint need not “forecast evidence sufficient to prove
an element” of the claim. Iodice v. United States,
289 F.3d 270,
281 (4th Cir. 2002). Rather, the complaint need only allege facts
sufficient to state the substantive elements of the claim.
Id. In
conducting our de novo review of the sufficiency of a complaint to
state a claim for relief under Rule 12(b)(6), we “take the facts in
the light most favorable to the plaintiff,” but “we need not accept
the legal conclusions drawn from the facts,” and “we need not
accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” Eastern Shore Mkts., 213 F.3d at 180.
Whether a party was entitled to summary judgment is a question
of law, which we review de novo. Higgins v. E.I. DuPont de Nemours
& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is
appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing a
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district court’s grant of summary judgment, we must construe the
facts in the light most favorable to the non-moving party, here,
Plaintiff. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675
(4th Cir. 1996) (en banc).
Having thoroughly reviewed the district court’s opinions and
the parties’ briefs and submissions on appeal, and having heard
oral argument in this case, we conclude that the district court did
not err in granting Rule 12(b)(6) dismissal of Plaintiff’s federal
copyright claim, nor did it err in granting summary judgment in
favor of Defendant with respect to Plaintiff’s remaining state law
claims. We, therefore, affirm on the reasoning of the district
court. Brown v. Flowers, C/A No.: 1:02-CV-00862 (M.D.N.C. Sept.
14, 2005) (granting Defendant’s motion for summary judgment with
respect to all state law claims); Brown v. Flowers, 297 F. Supp. 2d
846, 851-53 (M.D.N.C. Dec. 12, 2003) (granting Rule 12(b)(6)
dismissal of federal copyright claim).
Finally, we are compelled to respond to two points made by the
dissent. First, even assuming arguendo, as the dissent would
recognize, that an individual who, in collaboration with another,
provides a substantial original contribution to a copyrightable
work qualifies for authorship status in the joint-work context of
the Copyright Act, Plaintiff’s complaint fails to state, for Rule
12(b)(6) purposes, a copyright claim in the joint-work context.
Contrary to the dissent’s assertion otherwise, Plaintiff’s
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complaint does not allege “that he made significant engineering
contributions in producing Flowers’s R&B recordings.” Post at 24.
In fact, Plaintiff’s complaint lacks even a single allegation that
he made any creative, original, or expressive contribution to the
song recordings at issue. Rather, at most, Plaintiff’s complaint
generically alleges that he acted as a recording engineer and
producer of the songs at issue. In an attempt to morph this
generic allegation into one of significant creative contribution
able to withstand Defendant’s Rule 12(b)(6) motion, the dissent
relies upon Plaintiff’s detailed explanations in his appellate
briefs (opening and reply) regarding the substantially creative
role that a recording engineer and producer plays in recording a
song of the rhythm and blues genre. Clear precedent requires that
the allegations to be considered in ruling on a Rule 12(b)(6)
motion be alleged in the complaint, with no exception for
consideration of embellishments and explanations offered in an
appellate brief. See Iodice v. United States, 289 F.3d 270, 281
(4th Cir. 2002) (dismissing negligence claim pursuant to Rule
12(b)(6) because complaint did not allege facts sufficient to state
all elements of negligence claim).
Second, we note the dissent’s wholly misplaced reliance upon
Plaintiff’s affidavit, executed February 5, 2003 (Plaintiff’s
February 2003 Affidavit), as creating a genuine issue of material
fact as to whether Defendant copyrighted and licensed recordings
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that were assets of the Hectic Records Partnership. The dissent
essentially relies upon this affidavit as the sole pillar of
evidentiary support in favor of its position that the district
court erred in granting summary judgment in favor of Defendant with
respect to Plaintiff’s state law claims for a partnership
accounting/breach of contract, breach of fiduciary duty, and unfair
and deceptive trade practices.
There are two significant problems with the dissent’s reliance
upon Plaintiff’s February 2003 Affidavit. First, Plaintiff never
submitted this affidavit to the district court in opposition to
Defendant’s summary judgment motion, nor did Plaintiff refer to it
in his January 20, 2005 memorandum in opposition to such motion or
do anything else to alert the district court that the affidavit
existed. Accordingly, although Plaintiff had, almost two years
prior, submitted his February 2003 Affidavit to the district court
in opposition to a change of venue motion brought by Defendant, the
district court had no notice that it should consider such affidavit
in assessing the merits of Defendant’s summary judgment motion.
Under Federal Rule of Civil Procedure 56(e), if Plaintiff wanted
certain evidence considered in opposition to Defendant’s summary
judgment motion, Plaintiff was required to point it out to the
district court. Fed. R. Civ. P. 56(e) (“When a motion for summary
judgment is made and supported as provided in this rule, an adverse
party may not rest upon the mere allegations or denials of the
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adverse party’s pleading, but the adverse party’s response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.”).
See also Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026,
1030-31 (9th Cir. 2001) (affirming grant of summary judgment in
favor of defendant despite existence in record of plaintiff’s
genuine-issue-of-material-fact-creating sworn declaration, filed
two years prior, in response to unrelated motion, because circuit
precedent, which follows majority view, holds that “district court
may limit its review to the documents submitted for the purposes of
summary judgment and those parts of the record specifically
referenced therein”); Accord id. at 1031 (district court need not
examine entire file for evidence establishing a genuine issue of
fact, where evidence is not set forth in opposition papers to
motion for summary judgment with adequate references so evidence
can be conveniently found); Adler v. Wal-Mart Stores, Inc.,
144
F.3d 664, 672 (10th Cir. 1998) (same); Forsyth v. Barr,
19 F.3d
1527, 1537 (5th Cir. 1994) (same); L.S. Heath & Son, Inc. v. AT&T
Info. Sys., Inc.,
9 F.3d 561, 567 (7th Cir. 1993) (same); Guarino
v. Brookfield Township Trustees,
980 F.2d 399, 404-06 (6th Cir.
1992) (same). Because Plaintiff failed to put the district court
on notice that he wanted the district court to consider his
February 2003 Affidavit in assessing the merits of Defendant’s
summary judgment motion, we cannot now fault the district court for
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failing to consider it. To hold otherwise would encourage parties
to sandbag the district court.
The second significant problem with the dissent’s reliance
upon Plaintiff’s February 2003 Affidavit is that the contents of
such affidavit are too vague and conclusory to create a genuine
issue of material fact to stave off Defendant’s summary judgment
motion. See Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998)
(affirming grant of summary judgment because plaintiff’s
“conclusory statements, without specific evidentiary support,” were
insufficient to create a genuine issue of fact). For example,
Plaintiff conclusorily asserts in his February 2003 Affidavit that
“[t]he form and substance of ‘I Wish’ and ‘Lunch or Dinner’ and
literally hundreds of other songs resulted from work done for the
Hectic Records partnership by Flowers and I.” (J.A. 61). This
assertion is nothing more than the type of conclusory allegation
that is made in a party’s complaint at the initial pleading stage
of litigation. At the summary judgment stage, however, specific
evidentiary support is needed to support such a conclusory
assertion. Causey,
162 F.3d at 802. For a second example,
Plaintiff’s February 2003 Affidavit asserts that he has in his
possession CDs recorded in his Durham studio that show, what he
vaguely opines to be, only “minor alterations” between the
commercially released versions of “‘I Wish’” and “[‘]Lunch or
Dinner’” and the versions recorded in his Durham studio. (J.A.
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61). Plaintiff’s February 2003 Affidavit does not offer even a
single example of what he deems a minor alteration and the record
is otherwise devoid on the point. Indeed, Plaintiff did not, as
far as the record reveals, submit as evidence the CDs to which he
refers as the proof supporting the most basic allegations of his
lawsuit. See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)
(explaining that the party opposing summary judgment “cannot create
a genuine issue of material fact through mere speculation or the
building of one inference upon another”). In sum, Plaintiff’s case
lacked sufficient evidence for a jury to find in his favor with
respect to his state law claims.
In conclusion, we affirm.
AFFIRMED
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GREGORY, Circuit Judge, concurring in the judgment in part and
dissenting in part:
This case presents a novel question of federal copyright law.
Nevertheless, the majority adopts the cursory reasoning of the
district court in upholding that court’s Rule 12(b)(6) dismissal of
Eli Brown’s federal copyright claim, and its grant of summary
judgment as to Brown’s remaining state law claims. Because I
cannot agree with that reasoning or the results reached by the
district court with respect to the copyright claim and several of
the state law claims, I dissent in part. I concur only in the
holding that summary judgment was appropriate as to Brown’s
fraudulent concealment and negligent misrepresentation claims.
I.
Brown and Michael Flowers met in Durham, North Carolina, in
the late 1980s, while Flowers was studying music at North Carolina
Central University. In 1989, Flowers hired Brown to be his
manager, and the parties continued under that arrangement until
1992, when Flowers moved to Atlanta, Georgia. In 1995, shortly
after Flowers moved back to Durham, he and Brown formed a
partnership, which they later named “Hectic Records.” According to
Brown, the partners endeavored (1) to produce low cost 12" vinyl
recordings for play in clubs; (2) to provide engineering and
remixing services to other recording artists; and (3) to market
Flowers’s songwriting talents and Brown’s engineering and
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production skills to established recording artists. J.A. 211-14.
Brown later suggested to Flowers that the partners expand the scope
of their original business plan to include recording R&B songs and
selling them to other artists. According to Brown, the parties
agreed to divide the proceeds derived from these undertakings
equally.
Over the course of the next four years, Brown and Flowers
continued their Hectic Records partnership. For the most part,
they achieved only modest success. In 1996, the partnership
recorded an album for the group “Lost Souls.” Brown worked on the
production and engineering responsibilities for the album, while
Flowers focused on marketing. Flowers ultimately signed a
distribution deal with Ichiban Records to distribute the Lost Souls
album. Unfortunately for the Hectic Records partnership, the album
was not a commercial success.
At the same time Brown and Flowers were working on the Lost
Souls album, Flowers, with Brown’s assistance, recorded hundreds of
demo R&B songs in Brown’s Durham studio. Although it is undisputed
that Flowers composed and performed initial versions of many of
these songs on his personal recording device called an “iDAC,”
Brown contends that Flowers invariably brought copies of his
unrefined iDAC recordings to Brown’s Durham studio. On these
occasions, Brown, in his capacity as a sound engineer and producer,
added riffs and beats in compiling a master recording. In so
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doing, Brown was responsible for establishing tempo, ambiance,
echo, reverberation, treble, bass, frequency, gain, bandwith,
distortion, and equalizing, all of which, he argues, are
distinctive and essential elements of R&B recordings.
According to Brown, in 1999, Flowers traveled to New York and
New Jersey ostensibly to promote songs that the partners had
recorded under their Hectic Records label. During this trip,
Flowers arranged to distribute one of the songs that Brown had
engineered and produced, entitled “I Wish,” to Carl Thomas and
producer Sean “Puffy” Combs. Thomas eventually re-recorded “I
Wish” in New York and included it on an album that went on to
achieve platinum status.
By the end of 1999, Brown learned that “I Wish” was getting
significant air-time on radio stations in the New York area.
According to Brown, when he confronted Flowers with his discovery,
Flowers admitted that he had sold a couple of songs to Carl Thomas,
but reassured Brown that he “could expect a check from Puffy
Combs.” J.A. 215. Despite this assurance, Brown never received
the promised check. During a subsequent conversation, Flowers
expressed his desire to terminate the partnership and told Brown
that he would never receive proceeds from the sale of “I Wish.”
After dissolving the Hectic Records partnership in 1999,
Flowers moved to California with copies of several master
recordings that he and Flowers had produced in Durham. At some
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point thereafter, Flowers applied for and received copyright
registrations for these recordings.1 According to Brown, Flowers
subsequently licensed these recordings to other artists, who, in
turn, made re-recordings. As of this appeal, Flowers resides in
California, where he works for Warner-Chappell Music as a song
writer.
In 2002, Brown filed suit against Flowers in the Middle
District of North Carolina under the Copyright Act of 1976, 17
U.S.C. § 101 et seq. In support of his copyright claim, Brown
asserted alternative theories of recovery. Brown contended that,
by operation of the work-for-hire provision of
17 U.S.C. § 101, he
was the exclusive owner of the copyrights in the recordings, and,
accordingly, that Flowers had infringed on his copyrights.
Alternatively, Brown asserted that he and Flowers were joint owners
of the copyrights, and, therefore, that he was entitled to share in
the royalties derived therefrom. In addition to his federal
copyright claim, Brown asserted state law claims for partnership
accounting,2 breach of fiduciary duty, fraudulent concealment,
1
The record does not indicate when this occurred.
2
Although Brown also asserted a separate “Breach of Contract”
claim, this claim was interrelated with--and provided the basis
for--his partnership accounting claim. In short, Brown contended
that because Flowers breached the terms of their partnership
agreement, Brown was entitled to an accounting under North Carolina
law. Accordingly, I will treat the breach of contract and
accounting claims as a single “partnership accounting” claim.
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negligent misrepresentation, and unfair and deceptive trade
practices.
Flowers filed a motion to dismiss the copyright claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). The district court
granted the motion in its entirety, concluding that Brown could not
establish ownership rights in the copyrighted songs. Shortly
thereafter, Flowers filed a motion for summary judgment on the
remaining state law claims. The district court granted summary
judgment as to all state law claims, concluding that there was no
evidence that the songs in question were recorded at Brown’s studio
or that Brown had played any role in their production. In so
doing, the court did not specifically discuss or analyze the merits
of Brown’s claims for breach of fiduciary duty, fraudulent
concealment, negligent misrepresentation, and unfair and deceptive
trade practices.
Brown timely appealed, contending that the district court
erred in dismissing his copyright claim pursuant to Rule 12(b)(6)
and in granting summary judgment on Brown’s various state law
claims. As discussed below, I conclude that the district court
erred in dismissing Brown’s copyright claim and all but two of his
related state law claims.
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II.
I begin with the district court’s Rule 12(b)(6) dismissal of
Brown’s federal copyright claim. This court reviews de novo a Rule
12(b)(6) dismissal, “accepting as true the factual allegations of
the challenged complaint and . . . viewing those allegations in the
light most favorable to the plaintiff.” Lambeth v. Bd. of Comm’rs,
407 F.3d 266, 268 (4th Cir.), cert. denied,
126 S. Ct. 647 (2005)
(internal citations omitted). “[A] district court may dismiss a
complaint for failure to state a claim only if it appears beyond
doubt that the plaintiff can prove no set of facts that would
entitle him to relief.” Id.
A.
As a threshold matter, we must examine the nature of the
copyrights at issue. “Copyright protection extends to two distinct
aspects of music: (1) the musical composition, which is itself
usually composed of two distinct aspects--music and lyrics; and (2)
the physical embodiment of a particular performance of the musical
composition, usually in the form of a master recording.” Staggers
v. Real Authentic Sound, 77 F. Supp. 2d 57, 61 (D.D.C. 1999); see
also 6 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, §
30.03 (2003)[hereinafter Nimmer] (“Copyright ownership of the
physical embodiment of the performance of a musical composition
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(e.g., a master recording) is distinct from the ownership of the
copyright in the musical composition itself.”).
Brown concedes that Flowers composed the music and lyrics for
the recordings at issue. Accordingly, he does not dispute that
Flowers had the exclusive right to copyright compositions that
embodied these elements, had he chosen to do so. Brown contends,
however, that Flowers copyrighted and subsequently licensed to
other artists the physical embodiments of those compositions--i.e.,
the master recordings that Brown had engineered and produced--
instead of merely copyrighting his raw compositions. Indeed, Brown
asserts that “the only media in which any copyright has been fixed
in connection with this case, as is common with ‘R&B’ music and the
beats and riffs they contain,” are the master recordings.
Appellant’s Reply Br. at 1-2. In support of this argument, Brown
contends that re-recordings made by other artists contain beats and
riffs that are similar or virtually identical to the beats and
riffs that Brown had incorporated into Flowers’s iDAC
compilations.3
In reviewing the propriety of the district court’s Rule
12(b)(6) dismissal of Brown’s copyright claim, I accept as true
3
Although the panel expressed concern at oral argument that
Brown had not offered to play copies of these recordings to the
district court in order to demonstrate these similarities, the
plaintiff was not obligated to put on evidence at the motion to
dismiss stage, where allegations in the complaint are sufficient.
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Brown’s contention that the copyrights at issue extend to the
master recordings, and not to the compositions.
B.
Even though Brown alleges that the copyrights extend to the
master recordings, Brown must further allege that he is entitled to
an ownership interest in those copyrights in order to state a claim
under the Copyright Act. Brown posits two grounds to support his
contention that he has an interest in the copyrights: the work-for-
hire and joint-work provisions of 17 U.S.C. § 101. The district
court correctly concluded that Brown’s work-for-hire theory of
copyright ownership was insufficient as a matter of law.4 However,
4
Although it is typically the case that the author of a work
is the owner of the copyright in that work, the Copyright Act
recognizes an exception where the work is made for hire. See 17
U.S.C. § 101. Under the statute, a “work made for hire” is either
“a work prepared by an employee within the scope of his or her
employment,” or a specially commissioned work.
Id. In either
case, the Copyright Act provides that the employer, rather than the
author-employee, holds the copyright in the work, unless their
written agreement provides to the contrary. Id.; Comty. for
Creative Non-Violence v. Reid,
490 U.S. 730, 737 (1989).
Brown first claims that the recordings at issue are works for
hire and that he is the sole owner of the copyrights in those
works. Thus, Brown contends that Flowers is liable to him for
infringement. As the district court correctly concluded, however,
Brown has not alleged that Flowers was his employee or that he
specially commissioned Flowers to record songs for him. To the
contrary, the central allegation in Brown’s complaint is that he
and Flowers were business partners who jointly endeavored for the
success of their Hectic Records label. Thus, the district court
correctly concluded that Brown had not alleged ownership under
work-for-hire doctrine.
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I believe that the district court erred in reaching a similar
conclusion with respect to Brown’s joint-work theory.
Brown argues that the master recordings constitute joint
works, for which he made an original contribution as a sound
engineer and producer. Specifically, Brown contends that these
recordings constitute a compilation of Flowers’s lyrical and
musical contributions and his engineering and production
contributions. Brown alleges that, by virtue of his and Flowers’s
collaborative efforts, the former partners own equal and undivided
interests in the copyrights of their joint works--the master
recordings. Thus, Brown asserts that he has the right to an equal
share of the profits derived therefrom. See Thomson v. Larson, 147
F.3d 195, 199 (2d Cir. 1998).
A “joint work” under the Copyright Act is one “prepared by two
or more authors with the intention that their contributions be
merged into inseparable or interdependent parts of a unitary
whole.” 17 U.S.C. § 101. The language of the statute, therefore,
provides that for a work to be a “joint work,” there must be (1) a
copyrightable work, (2) two or more “authors,” and (3) a mutual
intent of the authors to merge their work. See
id. See also
Aalmuhammed v. Lee,
202 F.3d 1227, 1234 (9th Cir. 2000). The
parties do not dispute that the first requirement is satisfied.
Therefore, the dispositive inquiry focuses on whether Brown has
sufficiently alleged authorship and mutual intent.
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i.
Because the statute does not define the term “authors,” two
competing interpretations have emerged. The significant issue that
distinguishes these two interpretations is whether a joint-work
claimant must have contributed material that, standing alone, would
be entitled to copyright protection, or whether only the combined
result of the parties’ efforts must be copyrightable.
The Second and Ninth Circuits have espoused the former
interpretation, requiring a joint-work claimant to demonstrate that
his contribution was independently copyrightable. See Childress,
945 F.2d at 507 (“It seems more consistent with the spirit of
copyright law to oblige all joint authors to make copyrightable
contributions, leaving those with non-copyrightable contributions
to protect their rights through contracts.”); Aalmuhammed, 202 F.3d
at 1234 (“A joint work in this circuit requires each author to make
an independently copyrightable contribution’ to the disputed
work.”) (internal quotation marks omitted).
Applying this standard, the Second Circuit in Childress
concluded that an actress who had taught the playwright about her
true-life character’s career was not an author of the play. 945
F.2d at 509. Similarly, in Aalmuhammed, the Ninth Circuit rejected
the contention that the plaintiff, an Islamic scholar who had
consulted with director Spike Lee during the filming of the movie
Malcolm X, qualified as an author. 202 F.3d at 1236. In so doing,
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the court in Aalmuhammed announced that “[a] creative contribution
does not suffice to establish authorship of a movie.” Id.
Professor Nimmer argues against a requirement that a
contribution be independently copyrightable, primarily on the
grounds that it is not supported by the plain language and
legislative history of 17 U.S.C. § 101. Nimmer § 6.07[A][1] (“That
language contains no requirement that each contribute an
independently copyrightable component to the product.”). This is
a valid criticism.
Because the statute does not provide an express definition for
the term “author,” I would “construe [this] statutory term in
accordance with its ordinary or natural meaning.” FDIC v. Meyer,
510 U.S. 471, 476 (1994). As it is understood in this context, the
word “author” refers to a person “who is the source of some form of
intellectual or creative work.” Webster’s Third International
Dictionary 146 (2002). An “author” is further defined as “one that
originates, makes, or gives existence,” or “one that brings about
or is the efficient cause of an action.”
Id. Thus, the term
“author” merely connotes some significant form of original
expression made in connection with an artistic endeavor.
The legislative history further undermines the notion that
authorship, as it is understood in the joint-work context, requires
an independently copyrightable contribution. The House Report
accompanying the Copyright Act of 1976 provides:
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[A] work is joint if the authors collaborated with each
other, or if each of the authors prepared his or her
contribution with the knowledge and intention that it
would be merged with the contributions of other authors
as “inseparable or interdependent parts of a unitary
whole.” The touchstone here is the intention, at the
time the writing is done, that the parts be absorbed or
combined into an integrated unit . . . .
H.R. Rep. No. 94-1476, at 120 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5736. As Professor Nimmer notes, the
legislative history “elevates intention as the touchstone, without
placing any further parsing as to the copyrightable status of each
individual component that the parties intended to contribute to the
work as a whole.” Nimmer § 6.07[A].
According to Professor Nimmer, the contributions of putative
joint authors do not have to be equal, “either quantitatively or
qualitatively, in order to constitute them as joint authors.” Id.
Although Nimmer recognizes that the contribution of each must be
more than “de minimus,” he takes the position that an
interpretation of authorship as requiring an independently
copyrightable contribution is overly restrictive and potentially
inequitable. See id. In support of this interpretation, Nimmer
posits the following hypothetical:
[I]f authors A and B work in collaboration, with A
contributing sparkling plot ideas and B weaving them into
a completed screenplay, it cannot be doubted that both
have made more than a de minimus contribution to the
resulting script. On that basis both A and B should be
considered joint authors of the work, even though,
standing alone, plot ideas may not be copyrightable.
Id.
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With its recent decision in Gaiman v. McFarlane, 360 F.3d 644,
659 (7th Cir. 2004), a panel of the Seventh Circuit adopted
Nimmer’s interpretation of authorship. The facts of that case were
as follows. The defendant, the creator and illustrator of a
faltering comic book series, invited the plaintiff to write a
script for one issue.
Id. at 649. Subsequently, the plaintiff
wrote a script in which he introduced three new characters to the
series.
Id. Based on the plaintiff’s verbal description of the
characters and his written dialogue, the defendant drew these
characters into the series.
Id. Thereafter, the plaintiff brought
suit, contending that he was entitled to an ownership interest in
the copyright by virtue of the joint-work provision.
Id. at 650.
With respect to the authorship requirement, Judge Posner
recognized that although a contribution of “some original
expression” is required for authorship status, he rejected the
notion that such contribution must always be independently
copyrightable. Id. at 658. In so doing, Judge Posner reasoned as
follows:
But where two or more people set out to create a
character jointly in such mixed media as comic books and
motion pictures and succeed in creating a copyrightable
character, it would be paradoxical if though the result
of their joint labors had more than enough originality
and creativity to be copyrightable, no one could claim a
copyright. That would be peeling the onion until it
disappeared. The decisions that say, rightly in the
generality of cases, that each contributor to a work must
make a contribution that if it stood alone would be
copyrightable weren’t thinking of the case in which it
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couldn’t stand alone because of the nature of the
particular creative process that had produced it.
Id. at 660. Applying this logic, the court concluded that the
plaintiff’s creative contribution to the comic book series,
although not independently copyrightable, was sufficient to accord
him authorship status.5
Id.
Thus, as it stands today, there is a division of authority as
to whether a joint-work claimant must make an independently
copyrightable contribution in order to satisfy the authorship
requirement. As noted above, our court has never addressed this
issue, and, therefore, the district court had to determine which
approach to follow. After briefly identifying the lead cases from
the Second and Ninth Circuits, and without discussing the contrary
view of Professor Nimmer and Judge Posner, the district court
determined (1) that an allegation of an independently copyrightable
contribution was required to show authorship and (2) that Brown had
failed to make such an allegation. I disagree with both
conclusions.
First, I disagree that an independently copyrightable
contribution is always required to show authorship. As Professor
Nimmer has recognized, “copyright’s goal of fostering creativity is
5
It is unclear whether this holding is limited to “mixed
media” works. Compare Gaiman, 360 F.3d at 658-60, with Erickson v.
Trinity Theatre, Inc.,
13 F.3d 1061 (7th Cir. 1994) (requiring
independently copyrightable contribution for theater companies’
suggestions to the playwright).
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best served . . . by rewarding all parties who labor together to
unite idea with form, and that copyrightable protection should
extend both to the contributor of the skeletal ideas and the
contributor who fleshes out the project.” Nimmer § 6.07[A][3][a].
Accordingly, I would recognize that an individual who, in
collaboration with another, provides a substantial original
contribution to a copyrightable work satisfies the authorship
requirement, regardless of whether his contribution, standing
alone, would be individually copyrightable. Although this standard
necessarily entails a more exhaustive assessment of the respective
contributions of the parties and the particular media at issue, I
believe that it is a more thorough and equitable approach.
Further, this standard is more consistent with the plain language
and legislative history. Because Brown has alleged that he made
significant engineering contributions in producing Flowers’s R&B
recordings, he has satisfied this less stringent authorship
standard.
However, even assuming that the district court correctly
surmised that this court would adopt the approach of the Second and
Ninth Circuits to require an independently copyrightable
contribution, the district court failed to recognize that the
allegations in Brown’s Complaint satisfy this more stringent
authorship standard. Brown alleges in his Complaint that he acted
as recording engineer and producer of the master recordings. See
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J.A. 2-3. As explained below, the few district courts to have
addressed the authorship requirement within the specific context of
the music recording industry have recognized that substantial
engineering and production contributions accord authorship status.
In JCW Investments, Inc. v. Novelty Inc., 289 F. Supp. 2d 1023
(N.D. Ill. 2003), the district court noted that “[a] record
producer may be an author when he or she is ‘responsible for
setting up the session, capturing and electronically processing the
sounds, and compiling and editing them to make a final sound
recording.’”
Id. at 1032(quoting H.R. Rep. No. 94-1476, at 56
(1976)). Similarly, in Morrill v. J.M. Productions,
157 F. Supp.
2d 1120, 1122 (C.D. Cal. 2001), the district court noted that the
plaintiff’s contributions in producing and editing a music video
satisfied “the requisite level of copyrightable expression
necessary to support a claim of joint authorship.”
Id. at 1122.
Even though the joint-work claimant in Morrill had not composed or
performed the lyrics, the court nevertheless recognized that his
contributions in producing, engineering, and editing the music
video constituted a significant original contribution, such that he
should be deemed an author of that work.6
Id. at 1126.
6
Because the defendant-performer successfully asserted a
joint-work theory to defend against the plaintiff-producer’s claim
that the defendant-performer had infringed upon his exclusive
copyright interest in the music videos, the district court granted
summary judgment in favor of the defendant. Id. at 1127.
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As noted above, Brown alleges that, in his capacity as a
engineer and producer, he compiled master recordings of Flowers’s
performances. See J.A. 2-3. In that role, Brown explains that he
was responsible for selecting and incoporating tempo, ambiance,
echo, reverberation, treble, bass, frequency, gain, bandwith,
distortion, and equalizing, all of which, he argues, are
distinctive and essential elements of R&B recordings. Thus,
accepting Brown’s allegation as true, I conclude that Brown
satisfies the authorship requirement for a joint work.
ii.
In addition to satisfying the authorship requirement, a joint-
work claimant must demonstrate that both parties intended their
contributions be “merged into inseparable or interdependent parts
of a unitary whole.” 17 U.S.C. § 101. As the Second Circuit
recognized in Childress, parts of a unitary whole are inseparable
“when they have little or no independent meaning standing alone.”
945 F.2d at 505. Parts of a unitary whole are interdependent “when
they have some meaning standing alone but achieve their primary
significance because of their combined effect, as in the case of
words and music of a song.” Id.
As the Second Circuit recognized in Childress:
Examination of whether the putative co-authors ever
shared an intent to be co-authors serves the valuable
purpose of appropriately confining the bounds of joint
authorship arising by operation of copyright law, while
leaving those not in a true joint authorship relationship
with an author free to bargain for an arrangement that
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will be recognized as a matter of both copyright and
contract law.
Id. Further, “since co-authors are afforded equal rights in the
co-authored work, the ‘equal sharing of rights should be reserved
for relationships in which all participants fully intend to be
joint authors.’” Thomson v. Larson, 147 F.3d 195, 201 (2d Cir.
1998) (quoting Childress, 945 F.2d at 509). In Thomson, the Second
Circuit recognized that an important indicator of the parties’
intent is whether a joint-work claimant has “decisionmaking
authority” over the substance and form of a work. Id. at 202-03.
The court in Thomson also recognized that the way in which the
parties hold themselves out to third parties is also significant.
Id. at 203. Finally, the court noted that the parties’ written
agreements with each other provides insight into whether they
intended to create a joint work. Id. at 204.
To determine whether the parties intended to create a joint
work, the Ninth Circuit has suggested its own three criteria: (1)
whether the putative co-author exercises some measure of control
over the venture; (2) whether the parties make objective
manifestations of their shared intent to be co-authors; and (3)
whether the audience appeal of the work is attributable to the
contributions of both parties. See Alamuhammed, 202 F.3d at 1234.
Although each of these factors should be considered, “[c]ontrol in
many cases will be the most important factor.”
Id.
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Thus, applying the requirements of the Second and Ninth
Circuits, I recognize that Brown had to allege: (1) that he had
significant decisionmaking authority over the form and substance of
the master recordings; (2) that he and Flowers made objective
manifestations of their intent to be co-authors to each other and
to third parties; and (3) that the audience appeal of the master
recordings was attributable to the contributions of both parties.
Because Brown alleges that he served as the engineer and
producer of the master recordings, I conclude that he had
significant decisiomaking authority over the substance and form of
the master recordings. Thus, Brown satisfies the first
requirement. Second, as to Brown’s allegations that the parties
collaborated over a period of four years in recording demo R&B
songs under their Hectic Records partnership label and in
attempting to distribute those recordings to third parties under
that label, I conclude that Brown has sufficiently alleged that the
partners made objective manifestations of their intent to be co-
authors. Finally, because the audience appeal of R&B songs is
attributable in large measure to their underlying riffs and beats,
which, invariably, are incorporated into those songs by recording
engineers and producers, I conclude that Brown’s allegations
satisfy the third requirement. Accordingly, the district court
erred in concluding that Brown’s allegations did not satisfy the
mutual intent requirement.
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iii.
In sum, applying Brown’s factual allegations to the statutory
requirements of authorship and intent, I conclude that Brown has
stated a claim under the joint-work provision of 17 U.S.C. § 101.
Accordingly, I would vacate the district court’s Rule 12(b)(6)
dismissal of the copyright claim and remand for further
proceedings.
III.
Next, Brown contends that the district court erred in granting
summary judgment to Flowers on his state law claims for partnership
accounting, breach of fiduciary duty, fraudulent concealment,
negligent misrepresentation, and unfair and deceptive trade
practices. I conclude that the district court erred in granting
summary judgment on all but the fraudulent concealment and
negligent misrepresentation claims.
This court reviews de novo the district court’s decision to
grant the defendant’s motion for summary judgment. Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir.
2003). According to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, . . . show that there is no genuine
issue as to any material fact and that the moving party is entitled
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to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Although we view the facts and inferences drawn therefrom in the
light most favorable to Brown, the non-moving party, he
nevertheless has the ultimate burden of demonstrating a genuine
issue of material fact for trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Thompson v. Potomac Elec. Power Co.,
312 F.3d 645, 649 (4th Cir. 2002).
A.
Brown alleges that Flowers breached their Hectic Records
partnership agreement by failing to share half of those “monies
earned by Flowers using music produced in Brown’s Durham recording
studio.” J.A. 17. Further, Brown contends that Flowers failed to
“share the proceeds of recording contracts [Flowers] has received
from established record labels, artists, and production companies.”
Id. Accordingly, Brown argues that he is entitled an accounting of
all profits derived from Flowers’s misappropriation of the
partnership assets.
Flowers concedes that he and Brown formed the Hectic Records
partnership. Nevertheless, Flowers argues that Brown put forth no
evidence that Flowers misappropriated the recordings made in
Brown’s Durham studio in a separate business endeavor. Brown
disputes this contention, arguing that he presented sufficient
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evidence that Flowers sold their collaborative recordings to third
parties. I agree.
North Carolina General Statute § 59-36, defines a partnership
as “an association of two or more persons to carry on as co-owners
of a business for profit.” More specifically, “[a] partnership is
a combination of two or more persons of their property, effects,
labor, or skill in a common business or venture, under an agreement
to share the profits or losses in equal or specified proportions,
and constituting each member an agent of the others in matters
appertaining to the partnership and within the scope of its
business.” Compton v. Kirby, 577 S.E.2d 905, 912 (N.C. Ct. App.
2003). Pursuant to North Carolina’s Uniform Partnership Act, any
partner who is “wrongfully excluded from the partnership business
or possession of its property by his copartners” is entitled to a
formal accounting.
N.C. Gen. Stat. § 59-52 (2005).
In concluding that Brown had not presented any evidence that
the songs in question were recorded in the partners’ Hectic Records
studio or that he had contributed to their creation, the district
court overlooked (or disregarded) Brown’s affidavit. In refuting
Flowers’s contention that he did not misappropriate partnership
assets, Brown asserted as follows:
When the agency agreement expired in 1992, Flowers
left the Durham area for a time, but he returned in 1994
and at that time he and I hit upon the idea of the
“Hectic Records” partnership. Our understanding was that
we would work together with me providing the capital, the
studio and the recording equipment and he would provide
- 31 -
the musical ideas. Together with his musicianship and my
engineering skills we would produce recordings for play
in local clubs, to demo with recording artists and record
labels and to eventually obtain a contractual
relationship with a recording label. We agreed that any
music we produced was a partnership asset and that any
income produced by our joint labors would be equally
divided between us. . . .
I am not and have never claimed to be a song writer.
I do have skills in the field of musical engineering, and
offered suggestions for refinements and changes to the
earliest recordings of songs Flowers wrote called “I
Wish” and “Lunch or Dinner,” and nearly every other piece
of music that Flowers wrote while we were in partnership.
Although Flowers claims that all of this music, including
“I Wish” and “Lunch or Dinner,” was recorded outside of
North Carolina, I have in my possession CD’s recorded in
my studio in Durham, North Carolina that shows that the
only changes being made to music recorded pursuant to our
partnership agreement are minor alterations. The form
and substance of “I Wish” and “Lunch or Dinner” and
literally hundreds of other songs resulted from work done
for the Hectic Records partnership by Flowers and I.
J.A. 60-61. Brown’s affidavit thus creates a genuine issue of
material fact as to whether Flowers copyrighted and licensed the
recordings that Brown had engineered and produced in his Durham
studio. Stated differently, Brown’s affidavit is sufficient to
counter Flowers’s contrary contention that the recordings were not
partnership assets. Therefore, the district court erred in
granting summary judgment to the defendant on the partnership
accounting claim. See Fed. R. Civ. P. 56(c).
B.
Brown next argues that the district court erred in granting
summary judgment to Flowers on his breach of fiduciary duty claim.
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According to Brown, Flowers breached his fiduciary duty as a
partner by self-dealing with partnership assets. As noted above,
the district court did not specifically address this claim in its
opinion granting summary judgment to the defendant. Thus, the
majority’s reliance on the reasoning of the district court is
misplaced.
A fiduciary duty “exists in all cases where there has been a
special confidence reposed in one who in equity and good conscience
is bound to act in good faith and with due regard to the interests
of the one reposing confidence.” Abbitt v. Gregory, 160 S.E. 896,
906 (N.C. 1931). Under the Uniform Partnership Act, a partner is
accountable as a fiduciary. See
N.C. Gen. Stat. § 59-51.
Accordingly, North Carolina law provides that:
(a) Every partner must account to the partnership for any
benefit, and hold as trustee for it any profits derived
by him without the consent of the other partners from any
transaction connected with the formation, conduct or
liquidation of the partnership or from any use by him of
its property.
Id.
As discussed above, Brown presented evidence that Flowers sold
partnership assets to other artists and did not share the proceeds
from those transactions with Brown. See J.A. 60-61. Although
Flowers disputes this contention, Brown’s affidavit is sufficient
to create a genuine issue of material fact on this issue. As such,
the district court erred in granting summary judgment to the
defendant as to the breach of fiduciary duty claim.
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C.
Brown further contends that the district court erred in
granting summary judgment to the defendant on his unfair and
deceptive trade practices claim. Pursuant to North Carolina
General Statute § 75-1.1, “[u]nfair methods of competition in or
affecting commerce, and unfair or deceptive acts or practices in or
affecting commerce, are . . . unlawful.” Under North Carolina law,
“conduct which constitutes a breach of fiduciary duty and
constructive fraud is sufficient to support [an unfair and
deceptive trade practices] claim.” Spence v. Spaulding and
Perkins, Ltd., 347 S.E.2d 864, 866 (N.C. 1986). Thus, because the
district court erred in granting summary judgment on the breach of
fiduciary duty claim, it also erred in granting summary judgment as
to the unfair and deceptive trade practices claim.
D.
Finally, Brown raises claims of fraudulent concealment and
negligent misrepresentation. Again, the district court did not
explicitly discuss these claims in its opinion. Under North
Carolina law, a party asserting a cause of action for fraudulent
concealment or negligent misrepresentation must allege that he was
denied the opportunity to investigate or that he could not have
learned of the true facts by exercise of reasonable diligence.
Eastway Wrecker Serv. v. City of Charlotte, 599 S.E.2d 410, 414
- 34 -
(N.C. Ct. App. 2004). Brown alleged neither, and, therefore, the
district court properly granted summary judgment on these two
claims.
IV.
For the foregoing reasons, I would vacate the district court’s
Rule 12(b)(6) dismissal of Brown’s federal copyright claim as well
as the court’s grant of summary judgment in favor of Flowers on the
partnership accounting, breach of fiduciary duty, and unfair and
deceptive trade practices claims. Therefore, I dissent with
respect to those claims. I join the majority in affirming the
district court’s grant of summary judgment of the fraudulent
concealment and negligent misrepresentation claims, but on my
reasoning.
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