Property, intangible

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Refusing to Execute the Documents

Songwriters Daniel Cohen and Julie Didier owned their own publishing company, Bayou Blanc Music Company, which owned the copyrights in their songs. When they divorced in 1985, the divorce decree incorporated an agreement that Didier would continue to own Bayou Blanc but she would transfer Cohen’s pro rata share of the copyright ownership in all songs to any publishing company designated by Cohen. The agreement also provided that both parties would execute all necessary documents to effectuate the purposes and transactions in the agreement. Cohen set up his own publishing company and asked Didier to execute the copyright assignment but she didn’t.

So 25 years later Cohen decided to do something about it. He filed a “Petition to Enforce Final Decree or in the Alternative to Modify Final Decree as to Copyright and Royalties,” and as a result the circuit court ordered Didier to execute the copyright assignment. She still didn’t, so the court had the county clerk execute the assignment. Didier appealed.

Tennessee has a ten-year statute of limitations on “actions on judgments and decrees of courts …,” so Didier argued that the duty to assign the copyright was time-barred. There was, however, an ERISA case, Jordan v. Jordan, that distinguished enforcing a judgment, which is time-barred, from performing a ministerial act, which is not.

Under ERISA, the plan administrator needs a Qualified Domestic Relations Order before the administrator can make changes to a pension. The wife didn’t prepare the QDRO for more than ten years but the court nevertheless approved it. The husband objected that it was time barred but the court of appeals disagreed, finding that the approval of the QDRO was “adjunct to the entry of the judgment of divorce and not an attempt to enforce the judgment. It is an essential act to bring to fruition the trial court’s decree regarding a division [of the husband’s marital property].”

Didier argued that Jordan was limited to ERISA cases, but the appeals court disagreed: “The act of executing the copyright assignments on behalf of Bayou Blanc, the owner of the rights to the songs, falls squarely in the category of ‘mere ministerial task necessary to distribute funds previously allocated’ in the divorce decree.” The divorce decree was a decision on how the royalties would be divided, but it can’t be enforced until Didier executes the copyright assignments. Therefore, ordering the clerk to sign the documents on behalf of Didier is adjunct to the entry of the judgment of divorce and not an attempt to enforce the judgment.

And now comes the fun of actually getting to the enforcement phase and trying to get the back royalties paid.

Cohen v. Didier, No. M2013-01370-COA-R3-CV (Tenn. App. Ct. Aug. 19, 2014).

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