• It Was Assigned

    by  • February 19, 2014 • copyright

    Last Friday I asked whether a document entitled “Recording Release” transferred copyright ownership of the four songs listed at the bottom. The answer is that it most certainly did.

    One defect in the document was that it only ever mentioned “you” as the transferee of the rights. The court, sitting as factfinder, held it was clear enough who “you” was:

    [T]he Court finds that the release, on its face, transfers Kole’s entire interest to all versions of the Recordings to “you.” The circumstantial evidence strongly indicates that “you” must be Jayarvee (Valenti). This is proved, not only by Valenti’s testimony, which the Court credits, but also by the adverse inference that the Court draws from Kole’s dubious testimony. It is further evidenced by the fact that the original remained in Valenti’s possession, suggesting that the parties intended to release the Recording to Valenti/Jayarvee, and by the fact that the You Are There Release corresponded in every material respect to the [unlitigated] Moments Like This Release, which even Kole concedes was a transfer of her copyright to Jayarvee. It also appears that third parties operated on the assumption that Jayarvee (Valenti) owned the copyright and that Kole did not challenge that assumption.

    But the dispute wasn’t so much about the language of the document itself, but rather the circumstances in which it came about. Valenti, the assignee of the copyright in Kole’s musical performance, was her boyfriend and the lawsuit is after an acrimonious split: “The break-up was bilious, and the mutual hostility between Kole and Valenti remained fully evident at trial.”

    The “dubious testimony” by Kole was this:

    At trial, Kole testified that the release was “never intended for anyone,” and that she signed and wrote her personal information, including her Social Security number, on the You Are There Release while it was substantially blank, simply to demonstrate to an elderly musician, Hank Jones—now deceased but then aged 89 or 90, and one of the musicians with whom she had recorded a duet—how the form should be filled out. On three prior occasions, however, Kole had testified that she could not remember the identity of the person for whom she had signed the form. Upon being asked at trial why she did not print Hank Jones’s name rather than her own in showing the elderly pianist how to sign the release, Kole answered “[m]y first reaction of you sign your name is I sign my name. You sign your address … Social Security number, and that’s how you do it.”
     
    Kole further testified that after signing the release as an example for Hank Jones, she placed it in her file, and that a full year later, she handwrote the four song recordings on the bottom of the page as an entirely unrelated notation, using the paper as essentially “scrap paper.” When asked for what purpose she wrote down the songs at all, Kole testified that “I was looking at what was recorded and what were the other songs that were going to work in their place. For example, I needed to find more of a swing song for Our Love Is Here To Stay, or I had to find a comparable ballad to My Romance. Things of that nature. It’s meaningless.”

    One of the things I like about this decision is that it shows the difference between the burden of proof on summary judgment and after a trial. In this case it was the same judge for both, but the decision carefully explains where the judge was weighing facts, like this:

    The original of the You Are There Release, as presented as an exhibit at trial, had staple holes in the upper left corner. While Valenti testified that he had stapled the You Are There Release to the Moments Like This release, Kole testified that she had stapled the You Are There Release to a list of songs. Upon observation, the Court found that the placement of the staple holes in the You Are There Release correspond exactly with the placement of the staple holes in the Moments Like This release, in a manner that would have occurred if the two equal-sized pieces of paper had been stapled together.

    Kole had released copies of her performance and was sued for it; since she had assigned the copyright she had no ownership defense and was enjoined.

    Peterson v. Kolodin, No. 13 Civ. 793(JSR) (S.D.N.Y. Jan. 29, 2014). Two releases (unfortunately without noticeable holes) here.

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