IP Law Daily Musician Tyler Armes can proceed with claim that he co-authored Post Malone song ‘Circles’
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Tuesday, October 20, 2020

Musician Tyler Armes can proceed with claim that he co-authored Post Malone song ‘Circles’

By Kevin M. Finson, J.D.

Armes, however, failed to plausibly allege that he was a joint owner of the "Circles" recording.

Composer and musician Tyler Armes adequately alleged that he was a co-author of the composition for the song "Circles," performed by Austin Richard Post, p/k/a Post Malone, the federal district court in Los Angeles has held, in rejecting defendants’ argument that the claim should be dismissed for failure to join the other credited writers as necessary parties. Armes had disclaimed any interest in the non-party writers’ shares and conceded that he had no basis to challenge their entitlement to credit. However, Armes’s claims based on alleged co-ownership in the recording of "Circles" were dismissed, but with leave to amend, because Armes failed to allege that he made an independently copyrightable contribution to the recording or that he superintended control over the recording (Armes v. Post, October 19, 2020, Wright, O.).

Austin Richard Post, known professionally as Post Malone, is a well-known musical artist. Tyler Armes, also a professional musician, claimed that he co-authored the composition and recording of Post’s song "Circles" and was entitled to credit and a share of the profits. Armes alleged that on August 8, 2018, he, Post, and Frank Dukes collaborated in a studio, with Armes on bass, Post on drums and Dukes playing guitar and keyboards," from 2:00 a.m. to 9:00 a.m. Armes also alleged that he and Dukes "co-wrote the chords for [Circles] on the keyboard" and that he "co-wrote and had significant input in the bassline" along with having input in other parts of the song as both a writer and producer. This input had an impact on the version of the song that was ultimately released, and that the song reflected more the style of Armes than it reflected any of Post’s prior music. Armes was not listed as a writer when the song was published and was not paid any share of the profits.

On April 7, 2020, Armes filed suit for (1) a declaratory judgment that he was a joint author of both the composition and the recording of "Circles," that he was entitled to co-writer and co-producer credits for both copyrights, and that he was entitled to prospective and retroactive royalties with respect to his interests in those copyrights, in a percentage to be proven at trial; (2) an accounting, and (3) a constructive trust over the proceeds. Post and co-defendants moved to dismiss on several grounds. Also on April 7, Post commenced a parallel action in the federal district court in New York City, seeking declaratory judgment that Armes is not a coauthor of the "Circles" composition or recording. Before the court were motions to dismiss filed by Post, Adam King Feeney, professionally known as Frank Dukes ("Dukes"), and Republic Records (erroneously sued as Universal Music Group, Inc.).

Non-party composers. Post argued that the claims regarding composition should be dismissed for failure to join the other credited writers because they were necessary parties under Rule 19. Armes disclaimed any interest in the non-party writers’ shares and conceded that he had no basis to challenge their entitlement to credit. Armes knew only that he worked on a large portion of the song at the 2018 recording session, but he did not know who else worked on it subsequently. Because of Armes’s disclaimer, the court held that there was no reason to consider those non-party writers necessary or indispensable to the case, so the motion to dismiss under Rule 19 was denied.

Transfer. Post argued that the case should be transferred to the Southern District of New York, where he had commenced a declaratory judgment action concerning Armes’s interest in "Circle" later on the same day that Armes filed this case. The court determined that Post had not made a strong showing of inconvenience to continuing in the present venue. None of the relevant facts occurred in New York, New York law did not govern the case, and the majority of the parties and witnesses appeared to reside in California. The motion to transfer was denied.

Recording claims. The court found that Armes failed to plead a claim upon which relief could be granted as to co-authorship of the recording because he did not allege that he superintended control over its creation. Armes cast his contributions as recommendations, which Post and Dukes were free to accept or reject, while Post and Dukes actually performed the song as it was recorded. He also did not allege a separately copyrightable contribution to the recording, but only that he made suggestions while Dukes and possibly an unnamed recording engineer actually recorded the performance of the composition which Armes allegedly co-wrote. The court granted the motion to dismiss as to the recording claims, but specifically allowed Armes leave to amend.

Service of process. Service upon Post was contested because Post himself never signed the mail receipt, but someone else at his address signed. Post did not contest that he actually received the service documents and because California law allows service by mail to parties outside the state, so the court ruled that service was effective as to Post. Service was also contested as to Dukes because the process was left with another person at Dukes’s place of business, not at his residence. This would have been allowable under California law for service upon a corporation or other business entity, but not for service upon an individual, so service on Dukes was quashed and a summons reissued for him.

This case is No. 2:20-cv-03212-ODW-PJW.

Attorneys: Kelsey Jordan Leeker (Lavely and Singer PC) for Tyler Armes. David A. Steinberg (Mitchell Silberberg and Knupp LLP) for Austin Richard Post a/k/a Post Malone.

MainStory: TopStory Copyright GCNNews CaliforniaNews

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