By Robert B. Barnett Jr., J.D.
The defendants’ argument for dismissal on statute of limitations grounds contained no indication of when the infringement was supposed to have occurred or when the plaintiff was supposed to have learned of the infringements.
A sprawling copyright infringement suit by a New Orleans disc jockey against 47 musical artists and record companies alleging that they used his copyrighted recording of the song "Choppa Style" without authorization adequately stated a cause of action by pleading that he owned a valid copyright and that they copied constituent elements of his original work, a Louisiana federal district court has ruled. The court also rejected arguments that the suit was not filed within the required three years because, even though the song was written about 20 years ago, the copyright was obtained in 2019 and the alleged copyright violations are ongoing (Edwards v. Take Fo’ Records, Inc., July 8, 2020, Feldman, M.).
Kirk Edwards is a New Orleans disc jockey who is known professionally as DJ JMK. In 2000, he authored a sound recording and musical composition called "Choppa Style Instrumental." He promoted the song as he worked as a DJ. With Edwards’ permission and assistance, a New Orleans rapper and songwriter known professionally as Choppa, recorded a song that became "Choppa Style." Upon request, they cleaned the song up to create a radio-friendly version, which became known as "Choppa Style (Radio) featuring DJ JMK."
According to Edwards, Earl Mackie, who owned Take Fo’ Records, liked "Choppa Style" and agreed to include it on an album in return for the payment of a flat fee, royalties, and a 30% bonus if the studio obtained a national distribution deal. In short order, the song became popular, and Take Fo’ Records did receive a national distribution deal, but Edwards never received anything beyond the original flat fee. Over the years, a list of artists too numerous to list here began using parts of "Choppa Style Instrumental," "Choppa Style," or "Choppa Style (Radio) featuring DJ JMK" in their own recordings, all without Edwards’ permission.
In 2019, Edwards registered a copyright for "Choppa Style," and he filed suit against the 47 artists and recording companies. Unsurprisingly, serving 40-something recording artists who are often moving around the country has proved difficult, and many of the defendants have never been served. In any event, five of those who had been served filed a motion to dismiss the complaint, arguing that the complaint was not filed within the statute of limitations and that the complaint failed to state a valid claim.
Statute of limitations. The five defendants argued that the copyright infringement claims were barred by the Copyright Act’s three-year statute of limitations. In making the argument, however, the five simply submitted a narrative indicating that the song was originally written 20 years ago. This narrative, the court noted, contained no indication of when the infringement was supposed to have occurred or when Edwards was supposed to have learned of the infringements. As a result of the weak argument, the only way the court would dismiss the complaint for failing to satisfy the statute of limitations was if the face of the complaint indicated that it the claim was filed outside the three years. Because it did not, the claim was not dismissed on statute of limitations grounds. Furthermore, the inference from the complaint was that the infringements continued to occur long after "Choppa Style" was written, which rendered the fact it was first recorded 20 years ago irrelevant.
Failure to state a claim. Turning to whether the copyright infringement claim itself was sufficiently pleaded, the court noted that Edwards needed to plead (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. "There can be no dispute," the court said, that Edwards satisfied those requirements. The court characterized the artists’ argument in support of dismissal as "difficult to follow, and they invoke no pertinent law." They mostly took issue with the first prong, even though they acknowledged that Edwards had registered the copyright before the lawsuit. As a result, Edwards satisfied pleading requirements for a copyright infringement claim.
Service of process. On March 12, 2020, long after the suit had been filed, 30 of the defendants had still not been served with process. Ultimately, an additional 16 artists were served in the time allowed, and the court dismissed the remaining 14 without prejudice. The court further partially granted motions to dismiss filed by Sony/ATV Music Publishing LLC, which was improperly sued as Sony/ATV Allegro, and Epic Records, a division of Sony Music Entertainment, for inadequate service of process. Sony/ATV Allegro is not a legal entity. Furthermore, Edwards failed to explain the invalid service or even to attempt to correct the error despite having notice of the defect. Service on Epic Records was invalid because Edwards tried to serve "Koy Saechao." The party upon whom service was attempted was not authorized to accept service for anyone named Koy Saechao. Once again, despite being told of the error, Edwards made no effort to correct the mistake. In addition, service upon Sony Corporation of America did not satisfy service upon Epic Records. In any event, Epic Records does not appear to be an existing legal entity.
Reconsideration. Edwards also asked the court to reconsider its previous order dismissing some of the defendants for non-service. He cited COVID-19, the ability of celebrities to hide, and the additional costs of re-issuing service as reasons justifying reconsideration. While the Federal Rules of Civil Procedure do not explicitly recognize motions for reconsideration, Rule 54(b) does allow a court to revise any order that does not end the action. The court refused to grant more time for service of those that Edwards had so far failed to serve, generally through his own inaction. The court did, however, grant the request as it applied to Edwards’ failure to file proofs of service with the court of those he had already served. The court granted five extra days to file proofs for five of the eight people he had supposedly already served.
The court, therefore, denied the motion to dismiss filed by five defendants. It granted a five-day extension for filing proofs of service for five additional defendants. And it dismissed Sony/ATV Allegro and Epic Records from the suit without prejudice.
This case is No. 2:19-cv-12130-MLCF-DPC.
Attorneys: Dashawn Paul Hayes (Hayes Law Firm, PLC) for Kirk Edwards, a/k/a DJ JMK. Michael Joseph Hall (Law Office of Michael J. Hall, LLC) for Take Fo' Records, Inc.
Companies: Kirk Edwards, a/k/a DJ JMK; Take Fo' Records, Inc.
MainStory: TopStory Copyright GCNNews LouisianaNews
Interested in submitting an article?
Submit your information to us today!Learn More
IP Law Daily: Breaking legal news at your fingertips
Sign up today for your free trial to this daily reporting service created by attorneys, for attorneys. Stay up to date on intellectual property legal matters with same-day coverage of breaking news, court decisions, legislation, and regulatory activity with easy access through email or mobile app.