IP Law Daily Purported co-author of 1978 song estopped from now claiming sole authorship
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Friday, June 21, 2019

Purported co-author of 1978 song estopped from now claiming sole authorship

By John W. Scanlan, J.D.

Although the litigant was unsuccessful in her prior litigation, allowing her to proceed now by asserting facts completely opposite to those she asserted earlier would create the perception that the earlier court was misled.

A litigant who previously had claimed that she was the co-author of a 1978 Julio Iglesias song was estopped from now claiming that she was the sole author, the U.S. Court of Appeals in Atlanta has held in an unpublished decision affirming the dismissal with prejudice of her copyright claim. However, the court declined to award attorney fees to Iglesias, stating that the plaintiff’s decision to proceed in the present case despite losing in the previous litigation was not patently frivolous, even though the court agreed that she intended "to make a mockery of the judicial system" (Korman v. Iglesias, June 20, 2019, per curiam).

In 1990, Mimi Korman filed suit seeking damages in tort regarding the song "Me Olvidé de Vivir." She alleged that she co-authored the song with Iglesias but never received any royalties from it, presenting a 1992 deposition and a 1993 affidavit in which she provided details about the collaborative process by which she and Iglesias wrote the song. The district court accepted as true her co-authorship allegation but held that her claims were barred by the statute of limitations. This decision was upheld by the Eleventh Circuit in 1994. In the present copyright suit, Korman claimed to be the sole author of the song. The district court granted Iglesias’ motion to dismiss with prejudice, ruling that Korman’s claim was barred by judicial estoppel because she previously claimed to be a co-author. She appealed.

Judicial estoppel. The Eleventh Circuit found that the district court properly declined to allow Korman to circumvent the time bar by alleging facts completely opposed to those she had alleged earlier. Although she argued that the district court should not have made a finding that she had an "intent to make a mockery of the judicial system" without any discovery, the Eleventh Circuit found that her intent was clear from the pleadings—to manipulate the judicial process by using the federal courts to test alternate legal theories. She also argued that the district court erred in considering her prior deposition and affidavit without converting Iglesias’ motion for dismissal into a motion for summary judgment and entering those documents into evidence, but the appellate court stated that the district court had discretion to consider those documents under an exception to the conversion process in Fed. R. Civ. Pro. 12(d) because they were central to the plaintiff’s claim and undisputed. Finally, while Korman argued that her prior statements regarding co-ownership were not legally inconsistent because they were the result of fraudulent inducements by Iglesias, the court found that despite any promises Iglesias may have made to her, her testimony at that time consistently described a collaborative writing process that was inconsistent with her present claim of sole authorship.

This case is No. 18-13772.

Attorneys: Diego Fernando Bobadilla (The Bobadilla Law Firm) for Mimi Korman. Steven Eric Eisenberg (Eisenberg Lehman, PLLC) for Julio Iglesias.

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